Thursday, September 24, 2009

A more civilised way?


There is a moving article in The Times today. It describes the attempts of a grandfather (who happens to be a retired judge) and his family to obtain contact with his grandchildren, after the death of his son. He found the experience to be "as dispiriting as it was depressing", with a thoroughly unsatisfactory outcome. He concludes:

"Contact applications do not lend themselves to the adversarial process. The welfare of the children should not involve a court battle between factions. A better, more civilised way must be found. And why should grandparents have to make an application for leave? We will never desert our son’s children. If contact cannot be agreed a further application will be made."

Can a more civilised way be found? I know that there are many who believe that the answer to this is a resounding "Yes", and I've come across many good ideas since I've been writing this blog, but none that have convinced me that we can do away with the courts, unless matters can be agreed. Having said that, there is nothing to stop the courts using an inquisitorial process in children disputes, and that would surely be a step in the right direction.

As to the issue of leave, in my experience this has always been pretty much a formality in grandparent applications, so I can see no reason why grandparents should have this extra hurdle to overcome.

4 comments:

  1. Children should never be at the centre of any divorce. Also, one would have thought the the grandparents would have been given some leverage based on the death of their own child.

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  2. I'm not sure that grandparents should be in any better position because of the death of their child, although contact does of course retain the grandchild's link with their dead parent's family.

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  3. I sympathise with these grandparents. My own experience was harrowing, humiliating and utterly futile. I am convinced a more civilised way can be found (perhaps mediation and collaborative law point the direction) even if the courts remain as the final arbiter.

    Applications continue to rise (up 6% last year) and yet legal aid becomes more difficult to obtain and CAFCASS is shedding staff; the current position is not sustainable, and there is a danger, as some have warned (e.g. Kelly O'Halloran
    ) of the process becoming administrative rather than judicial.

    Reform is only possible, however, where there is political will, and that is entirely lacking.

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  4. Yes, it does appear that the system is rapidly heading towards the point where it breaks down. Unfortunately, as you say, there is no political will whatsoever for proper reform - no votes in it!

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