Let’s not get carried away
The speech of the incoming president of the family division, Sir Andrew McFarlane, at the NAGALRO conference was uplifting and gave good reason to feel optimistic. Here is a link:
Sir Andrew joined a growing list of senior judges who have drawn our attention to how drastic a step it is to sever a relationship between a parent and a child. On one hand he described the situation when severance was carried out by the state, through adoption orders in public law, where there are strict steps and doctrines to follow when ‘nothing else will do’ BEFORE such drastic steps can be taken. On the other hand he contrasted this with the private law situation where the severance of the parent child relationship is accomplished with far less care, rigour and attention to detail.
In the FNF address Sir Andrew drew comparisons between how we deal with domestic abuse in the family court and how we deal with parental alienation. Here is a link:
This sounded like another remake of an already lame judicial script. It sounded like, ‘he said she said,’ revisited and an attempt to position FNF and Women’s Aid shouting in vain into the wind at each other from either side of an apparently wide and even deeper chasm. For reasons I’ll explore later, this is a false dichotomy. He should really have stuck with the central and universally accepted issue of severing a relationship between a parent and child and made the triangular comparison between when a parent / child relationship is severed:
- By the state in public law;
- By the state in private law;
- Slowly by another parent without any consideration for the law or the welfare of the child(parental alienation).
- Quickly by another parent without any consideration for the law or the welfare of the child (child abduction).
Although 1 and 2 are both carried out by the state, Sir Andrew has already described, in his NAGALRO speech, how the state is far less rigorous in 2 whilst producing the same devastating result as in 1 for both the child and the parent victims of a state intervention.
However, in 3 and 4, the severance of the relationship is carried out unilaterally with absolutely no consideration whatsoever for the welfare or personal sovereignty of the child or other parent. In 4, where abduction has an international element there are established procedures for restoring contact and there are also preventative measures that can be taken.
Furthermore, whilst the parent in 3 abuses the human rights and autonomy of both a child and a parent (as does 4) they are ironically assisted and rewarded by the state in their abusive and coercively controlling endeavour. Either by accident or by design, the state offers a helping hand to the emotionally abusive alienator by facilitating the isolation of alienated children. Unnecessary and time consuming hurdles are placed in the paths of a targeted parent whose best course is to get their case before a judge at the earliest opportunity. The unhelpful requirement to attend MIAM meetings — when mediation is useless in cases of pure alienation — the inordinate time taken to get a case to court, even more time squandered getting cases elevated from the magistrates court to an experienced district judge, the fact that so many district judges and FCA’s are so poorly trained and the fact that so many district judges seem unable or simply unwilling to manage alienation cases robustly and the fact that too often the lower courts do not order the involvement of appropriately qualified and experienced experts at an early stage. The fact is that all of these factors have been highlighted ad nauseam by various judges since 2004 when the last president Sir James Munby first enumerated them in F v M in the matter of D  EWHC 727 (Fam)(http://www.familylawweek.co.uk/site.aspx?i=ed56). Sadly, his time is up as president and we are all now hoping yet again that the new incumbent will finally come to terms with the plaintive calls of too many judges before him during the last 14 years of pleading from the bench.
Sir Andrew has given us all a glow and a warm feeling but when I read of his desire to encourage ownership amongst judges in the lower courts my heart sank and my optimism faded rapidly. The lower courts are still largely clandestine and populated by far too many prima donna judges and little closet despots who must have even unhappier home lives than most alienated parents to want to project their misery onto dejected, downtrodden and demoralised targeted parents. The lower courts are also home to some of the best preserved fossils of legal attitudes that most people thought were extinct. That is, until they went to court in order to see their kids. The daily reports that we get at NAAP indicate that, 800 years after Magna Carta, arbitrary justice is indeed still live and kicking!
Anthony Douglas described the lived experience of an alienated child as being ‘akin to living in a cult’. It was a good description because, like a cult leader, the alienating parent thrives when they can isolate their prey in order to get to work on their undue influence of their victims. The job has been made easier still by the state which has made it a simple matter to obtain a non-molestation order based upon the flimsiest of allegations. Provided the accuser is destitute enough they can reap further rewards in the form of state funded legal aid for the court proceedings. Besides operating as a passport to legal representation the present system encourages and incentivises false allegations which skew the scales of justice in favour of those who dishonestly work the system to cause emotional harm to their children. The irony is that they do this in the name of parental love. It is a sickening spectacle.
Accusations of harassment can also be very easily made to adhere firmly to any targeted parent. They also provide a gateway to state funding and a balance that is also loaded unfairly in favour of the accuser. Provided ones income is low enough this is an area where honesty certainly does not pay. In fact the more dishonest one is the greater the potential rewards. And, it does not stop there. In some parts of the UK, ‘enterprising’ legal professional will gladly assist the would-be abuser to ride roughshod over targeted parents and the children they abuse. Even at reduced legal aid rates this is money for old rope that solicitors can safely delegate to less well qualified and remunerated members of their teams.
Sir Andrew painted a picture of FNF and Women’s Aid being opposite sides of the same coin. This is fundamentally misleading for a few reasons. Apart from being problematic for the reasons Sir Andrew mentions ie the women’s aid study sample comprises, ‘…a self-selecting cohort of individuals. In reality, a great deal of women’s aid research is badly done, statistically invalid and draws upon a remarkably small and shallow gene pool of like minded researchers. As such, it is self serving and lacking in both academic and scientific rigour. I can’t understand why this should be required reading for active members of FNF as Sir Andrew enthuses. Surely, exaltations from our most senior family judge should be predicated upon evidence and not ill conceived dogma from a minute proportion of women’s aid beneficiaries that could actual be bothered to respond to their survey. Sixty-seven respondents is a pretty dismal response to their survey given the volume of their public address system and the vast resources at their disposal. Nonetheless, I followed Sir Andrew’s advice and It was depressing to read such a shoddy document. It was even more depressing to read of the presidents enthusiasm for it.
It was remarkable that research from the domestic abuse industry used similar methodology to that used in the world of PA but the PA research review by Julie Doughty criticised the PA literature for engaging sometimes identical methods.
It is also remarkable that the Cardiff ‘study’, which the Welsh minister Huw Iranca Davies AM described as authoritative, was equally as one eyed when it came to looking at the findings of the courts in cases where PA was alleged. They listed and summarised 9 cases where allegations of parental alienation were made but not upheld by the courts. By way of ‘balance’ they listed only 2 cases where there had been a transfer of residence. To compound, what appears to be their good old fashioned prejudice, of these 2 cases one had been allowed to wallow in the lower courts for such a long time that the failure of the transfer was a self fulfilling prophesy. Well done! We are currently taking a close look at some of the claims made in this report but a cursory or ‘rapid’ look at the cases where a transfer of residence has been successful there are in fact at least 17 published judgments from the higher courts that the report could have discussed and indeed should have to avoid fielding allegations of prejudice and bias.
Furthermore there are the published academic papers of Dr Kirkland Weir, that describe his formidable experience of reunification in PA cases and Claire Sturge’s commentary on one of them which are also notable for their absence from this study. We are also aware that practitioners such as Karen Woodall have carried out over 30 changes of residence ordered by the courts. However, the report has appeared to cherry pick much smaller numbers that resonate with their agenda and skew the impressions given to the readership.
These are the sort of things which are commonplace in the weird world of post modernism and family law research. If Sir Andrew wants to make a splash then he needs to look no further than predicating the family court upon evidence. After all, isn’t that what the law is supposed to be about? A deeper gene pool of contributors would also support the paramountcy of children’s welfare.
Sir Andrew, the system needs an enema. It’s a rather messy job but are you the man to administer the dose Sir?