Tuesday, September 02, 2014

K (Children): "Suffused with anger and arrogant position taking"

Lord Justice Ryder
I'm not going to do a full summary of this one - I'm sure others more exalted than me are already sharpening their keyboards with a view to writing something far more learned than I could achieve. Instead, I just wanted to highlight some of what Lord Justice Ryder had to say about the difficulties involved in dealing with private law children disputes where the parents are more concerned with fighting each other than with the welfare of their children. I would like to think that those who are quick to criticise the family justice system would read Mr Justice Ryder's words before launching another attack on the system, but I hold out little hope of that.

The case concerned two boys, now aged 14 and 12. Their parents separated in 2004 and the boys remained with their mother. Their parents have been litigating over them ever since, predominantly regarding the father's contact with them. On the 3rd of June last the Family Court ordered that they be removed from their mother's care, with the older boy placed with foster carers and the younger boy placed with his father. The mother appealed, and the Court of Appeal allowed the appeal in part and set aside the Family Court's orders, Lord Justice Ryder giving the leading judgment.

In the course of that judgment Lord Justice Ryder had a number of things to say about the parents and the problems faced by the court. Firstly about the decision made on the 3rd of June:
"The decision taken by the judge was an exercise by her of the ultimate protective functions that are available to the family court when it is exercising its private law children jurisdiction. Those functions have rightly been the subject of anxious and rigorous scrutiny in this court but it should not be forgotten that this decision, like others that have to be taken every day in the family court, was made in the context of asserted urgency of the most immediate nature relating to the safety of the boys concerned, poor quality evidence and little or no time to reflect upon the judgment that was to be made. Although, as I shall describe, this court allowed the appeal in part and set aside the orders made, we did so without criticism of anyone."
The judge's difficulties were exacerbated by the father not having legal aid:
"The judge in this case was not well served by the evidence or the problems created in part by the history of the case and the supposed urgency of the situation. The circumstances that dominated the hearing were not those which were the most important in the case and she was left to make a decision with poor quality material. Although articulate and intelligent, the father was a litigant in person who would have been simply unable without legal assistance to pursue the legal issues that have been pursued before this court. I question whether in the absence of legal representation he is able properly to put forward a sustainable position to the court."
As to the conduct of the parents:
"Mother should not and must not continue to believe that she can override the repeated conclusions of the court. It is, as the court has repeatedly said, desirable that the boys should have a close parental relationship with their father. The mother's approach has contributed to the damage that has been caused to the boys' emotional welfare. This cannot continue. The father must understand that the court cannot achieve the impossible. He has been responsible for at least some of the conflict that exists and the boys have suffered because of that."
He continued:
"The problem in this case is the maintenance of a meaningful relationship between the boys and their father. As is too frequently the case, the problem was caused by the parents of the children who are locked into a damaging, deteriorating spiral of conflict which desperately needs to be resolved. Without that resolution, whatever the court orders and no matter what steps are taken to enforce the court's orders, harm will continue to be caused to the children. Cases of this kind are unhelpfully and generically referred to as 'implacable hostility' cases because of the parental conflict that exists. The label provides no insight into or assistance with the myriad of circumstances and features that such cases present."
He concluded powerfully:
"In this case, the parents were both to have a meaningful relationship with their sons. That should have involved active practical and emotional steps to be taken by both parents to make it work. Instead the case is suffused with anger and arrogant position taking that has nothing to do with the children. There has undoubtedly been mutual denigration, true allegations, false allegations, irrelevant allegations, insults, wrongly perceived insults and the manipulation of the boys to an outrageous degree. The idea that the court can wave a magic wand and cure all of those ills is dangerously wrong. It cannot - its function is to make a decision. It does not have available to it a supply of experts, be they psychiatrists, psychologists, therapists, counsellors, drug, alcohol and domestic violence rehabilitation units, social and welfare professionals or even lawyers who can be 'allocated' to families. Experts that the court relies upon are either forensic experts i.e. they are specifically instructed to advise upon the evidence in a case or they are experts who are fortuitously already involved with the family through one agency or another. Their role in proceedings is to advise the court. There is no budget to employ them or anyone else to implement the court's decision save in the most limited circumstances through the local authority, Cafcass or voluntary agencies."

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