WHY DON’T THEY GET IT ???

pexels-photo-210585.jpegMost People Do GET IT. 

Not everyone knows what parental alienation is but once anyone has the dynamic explained to them they will invariably be related to or they will be acquainted with someone that has been directly affected or touched by PA in some way. I have yet to meet a single adult that has not been touched by PA in some way. Without fail they instantly empathise with how it must feel to be severed from a relationship with one’s children. But it is both a frustrating and remarkable fact of life that many of the relatively small number of people, that hold key positions in the family justice system and really matter to all of us who enter the family court seeking justice, sadly STILL…. DO NOT GET IT!!

We are talking about how the most senior judges, on the one hand, make well publicised proclamations that show that they are aware of the seriousness, gravity and potentially life-long consequences of the awful decisions they have to make in public law. Whilst on the other hand we have the daily horror stories which we receive showing how decisions made in private law cases featuring parental alienation in the lower courts trivialise the severance of a parent / child relationship by:

  • lacking the healthy skepticism, scrutiny and rigour applied to fact finding and decisions made by the senior courts; 
  • lacking evidence of the wisdom, skills and training shown by some more senior and able judges;
  • lacking traces of the humanity, empathy and general understanding shown by some judgments in the higher courts.

We are also talking about uncomfortably high proportions of Cafcass and other social workers, besides too many expert witnesses, that make recommendations to the family courts that could impact upon children and their families for the remainder of their lives.

What is the basis for our assertion ?

Outgoing president of the family Court, Sir James’s Munby set an example and showed how clearly he did actually GET IT in a case called Re C (Re C (care proceedings: disclosure of local authority’s decision making process) [2002] EWHC 1379 (Fam) at 150). 16 years ago he stated that:

‘…it must never be forgotten that, with the State’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.’

Sir James was talking about making an order in public law that would have the capacity to effectively sever a relationship between a parent and a child. Such orders are common yet the consequences of such orders are far reaching and the repercussions continue to echo for the future lives of children, their immediate families and their extended families. The power of a court to legally remove, or airbrush out of existence, an entire branch of a child’s family, indeed, one half of a child’s very being, perhaps permanently, are amongst the most extreme sanctions available to the legal system in the courts of England and Wales. Sir James’ words demonstrated that he clearly understood the size of the responsibility and the gravity of the problem he was considering.

In other words the out going president GOT IT !!

The other side of the coin is that we are now hearing from parents directly affected by the courts and within the few months of our existence we have now seen an alarming volume of evidence from primary sources that clearly demonstrates the former president’s understanding has not percolated through the various tiers of justice. In some areas, some of the lower layers appear to be almost impervious. It is hardly surprising that the lower courts are apparently reluctant to consider publishing their judgments.

What is the present situation?

Sir James remarks were made 16 years ago in 2002 and they have been quoted and repeated many times since. The new president of the family Court is now preparing succeed Sir James Munby. However, shortly before his appointment was announced Sir Andrew Macfarlane spoke at the annual conference of the trade organisation representing children’s Guardian’s (NALGRO). Here is a link to his speech:

https://www.judiciary.gov.uk/wp-content/uploads/2018/03/speech-by-lj-mcfarlane-nagalro.pdf

Sir Andrew agreed with Sir James earlier view when he stated that:

Adoption orders are, rightly, regarded as the most Draconian orders that a family court, or indeed any court, can make. 

 

 

Sir Andrew also established that there is an equivalence between the severance of a parent /child relationship in the field of private law (whether perpetrated by the state or another parent) and the public law severance of the relationship using an adoption order in public law.

The relationship that the father in the case of Re J had with his three children was, effectively, totally severed in September 2014 with, now, little hope that it may be resurrected in any way during the remainder of their childhood or beyond. On a scale, the impact of that state of affairs is not, in my view, un-akin to the impact generated by the making of an adoption order. 

Therefore, unlike the vast army of his subordinates in the family justice system the new boss actually GETS IT TOO!!

Additional Insight

But, Sir Andrew added a significant concern regarding the way in which the respective orders were made and the differing degrees of diligence applied to decisions bearing a similar impact and equivalent degrees of seriousness in public and private law:

The adoption decision in every case is therefore afforded corresponding respect in terms of time, resources and judicial concern. Based on the evidence provided from the four recent cases that I have cited, I fear that the same cannot be said of potentially intractable contact cases.

To be in no doubt about the seriousness of what Sir Andrew is saying, and, for the avoidance of doubt, let’s unpick and paraphrase these sentences to ascertain the message that is being conveyed. Thus:

Because adoption orders are such serious orders the public law family justice system gives them a corresponding degree of respect in terms of:

  • time;
  • resources; and, 
  • judicial concern.

But, in private law cases featuring intractable hostility, on the basis of the four recent intractable cases which Sir Andrew had cited and appraised, the courts DO NOT afford a corresponding degree of respect in terms of:

  • time; 
  • resources; and, 
  • judicial concern.

Therefore, children and their families in intractably hostile cases are the poorest relatives in the family justice system.

Sir Andrew cited the research of Featherstone and Gupta’s in the early part of his speech and whilst this focused upon adoption it helps to promote a wider understanding of the dynamics at play whenever contact is severed if we simply substitute the terms ‘the severance of a parent / child relationship’ for the euphemistic term of ‘adoption’. Featherstone and Gupta’s research can be seen here:

http://cdn.basw.co.uk/upload/basw_55505-10.pdf

The empathetic research of Featherstone and Gupta clearly outlines the feelings experienced by both children and parents when relationships are severed. When considered in this light the demeanour of targeted parents in cases of parental alienation appears to be understandable and a natural outward display of the complex emotions they feel as innocent victims to the inter-parental equivalent of the worst sanction the state could impose since the abolition of capitol sentences. In fact it is not uncommon for targeted parents to suffer from serious psychiatric conditions such as PTSD (Post Traumatic Stress Disorder). The corollary of Featherstone and Gupta’s understanding is the way that these victims of extreme coercion are pigeon holed and mischaracterised by Cafcass and other social workers for reasons that clearly do not include a child’s best interests. We have now seen a number of cases where extreme grief, feelings of loss and abject hopelessness have been cynically mischaracterised using pejorative terms such as aggression and awkwardness.

Why is this insight so significant ?

We believe that this is not merely significant but it is actually a very important remark for a number of reasons, namely:

  • Our most senior family court judge confirmed, indeed demonstrated that, where court orders were made, that amounted to the severance of relationship between a parent and a child, the family Courts typically applied less diligence to private law cases than they did to corresponding public law cases. 
  • The cases Sir Andrew cited were all supported by published judgments from senior family court judges. Published judgments are the sanitised shop window for the family court. Therefore, when it is possible to find examples that support Sir Andrew’s proposition, without too much difficulty, on public display in the shop window, then it begs the question as to what lyes out of sight in the less well illuminated corners of the family justice system?

Indeed, our daily post bag contains daily accounts of such stories from the lower courts where:

  • these judges are generally less able, less well trained and less likely to query the recommendations of Cafcass officers and other social workers;
  • courts are likely to be misled by Cafcass officers who frequently express opinions about alienation and other mental health matters in which they have a lack of appropriate knowledge, competence and training;
  • secrecy and confidentiality are excuses used to cover incompetence, injustice and prejudice. etc.

With few notable exceptions, Judges, legal professionals, Cafcass, commentators, experts and practically everyone else with a vested interest in preserving a family justice system – that provides personal gain at the expense of justice for families – have, not unlike the most brainwashed and zealous cults, muttered the same nauseating and hypnotic mantra in perfect unison ad infinitum,

 ‘…there is no bias in the family courts… there is no bias in the family courts…there is no bias in the family courts… there is no bias in the family courts… etc etc’. ZZZZZZzzzzzzz

The word ‘Bias’ means,

‘…inclination or prejudice for or against one person or group, especially in a way considered to be unfair.’

Just like a bowls player’s wood will always behave in one way, so, it would seem on the basis of Sir Andrew’s analysis, do the family courts. i.e they consistently apply less diligence to private law cases involving the severance of a parent / child relationship in intractable cases than they would in public law cases where a parent child relationship is also effectively severed.

Sir Andrew has affirmed to the rest of the world that the emperors before him were as absolutely naked as jay birds and their incantations have now been laid before them as bare as a carcass picked clean by hungry vultures. 

Conclusions

Both Munby P and McFarlane P clearly GET IT as do quite a few other senior judges. Sir Andrew has shown an extra level of insight and understanding. He has illustrated a degree of inequity in the way the severance of a parent child relationships are viewed by the courts

Accusations of bias made against the family court system are exceedingly common. However, in respect of the wide spectrum of cases that get crammed into the ‘intractable hostility’ pigeon hole, Sir Andrew’s speech has confirmed that the accusations of bias in these cases are not without some considerable justification that will now take take more than a brace of anodyne platitudes to allay and mollify.

Sir Andrew has not yet officially taken up his new role. I hope this is an early indication of what to expect.