When the state severs a parent child relationship in public law
Lately we have been looking in more detail at the idea put forward by the new president of the family court, Sir Andrew McFarlane.
To recap, in his thoughfull keynote speech to the Nagalro annual conference.
Sir Andrew compared the way the family courts, on behalf of the the state, deal with the ‘severence’ of a parent child relationship. He contrasted and compared, adoption, in public law, to private law situations where orders were made by the state that amounted to the same thing as adoption i.e severing the relationship between a parent and a child. The end result was virtually identical but the labels given were different and of far more concern is the fact that the process applied in public law includes far more safeguards, involves a far greater degree of mandatory diligence and afer all is said and done the final cut can ony be made ‘when nothng else will do’. ( Lady Hale in Re B ).
Compare and Contrast severance in public law and private law
Compare this with the private law situation where orders are sometimes bulldozed through usually against unrepresented litigants who are equally as vulnerable, do not know the law, do not have the skills needed, are suffering from shock and in a state of unresolved grief for the loss of a child. Parental alienation and relationship reverence are frequently likened to bereavement. But, unlike bereavement there is no closure. Targeted parents and children experience intense and debilitating grief which can last for years. These parents are fighting with both hands tied behind their backs. I know many of you will empathise with this situation because many of you have told me this. I have also experienced it. It made me feel suicidal and wretched.
Orders that amount to severence are routinely dished out like confetti with none of the diligence and safeguards but with all of the heartache and pain involved with similar public law decisions. It seems to be a blind spot for the judiciary and Social workers and they appear to be oblivious to the reality that orders which are euphemistically called no contact orders, letterbox contact orders, indirect contact orders, unenforced contact orders all amount to the same thing i.e contact severence.
Similarly, any orders making expectations of couples to work out their own arrangements by agreement, when the cases are aleady intractable or bear all the hallmarks of being intractable, will also invariably end up as relationships being severed. Indeed the time wasted through failing to enforce orders allows further enmeshment with the abusive parent to take place. Severing a mutually treasured parent child relationship for frivolous, false, fabricated or weak reasons is emotionally harmful, coercive and abusive. Courts are effectively consigning children to a toxic and contagious brand of single parenting by parents who are often damaged at best and suffering from psycopathic personality disorders at worst. In short our kids are routinely being thrown under buses by the judiciary and the professionals who advise them.
There also seems to be a selective, collective but convenient blindspot around the fact that orders which sever the relationship between a parent and a child are in reality amongst the most serious and ‘draconian’ that UK courts — in any jurisdiction — can make since the abolition of the death penalty.
In a very moving case involving the prospective adoption of a little girl taken into care as a result of child protection proceedings, Munby J observed:
‘…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.’
(See Re C (care proceedings: disclosure of local authority’s decision making process) EWHC 1379 (Fam) at paragraph 150).
The speech referred to earlier by Sir Andrew McFarlane also paraphrases this important point.
When the parent child relationship is severed by a parent
The point made in the preceding section is that the severance of a parent child relationship ranks amongst the worst things that the state can do to its citizens. Therefore, when a parent does the same thing to another parent it is also one of the worst things that one human can do to another. Yet, collectively, we just do not seem to be bothered when we hear of parental alienation and the toxic use of parental undue influence. For a great example of how alienating behaviours are routinely belittled, and by those that really should know better, see the clip of Cafcass Cymru’s CEO, Nigel Brown, undermining parentally alienating behaviours in the Welsh Assembly. It beggars belief when such caustic and damaging behaviour can be taken so lightly by the same people who are charged with responsibility for safeguarding our children. They would be outraged by parents smoking in front of their kids or failing to strap them into a car seat. Yet behaviours that cause as much if not more harm are the subject to mirth and ridicule. There is a massive difference in the way we treat severing a parent child relationship in alienation cases in private law proceedings and the significant harm it causes compared with other sources of significant harm to children. Karen Woodall stated,
‘Parental alienation is one of the most damaging behavioural adaptations a child can be forced to endure in childhood and in its largely accepted presence in our society it is, I believe, a child abuse scandal which will one day be fully recognised all over the world.’
Higher Courts v Lower Courts
On the one hand how is it possible for the judiciary, in the higher courts, to speak of the seriousness of severing parent child relationships, by ranking it only second to the death penalty in its severity, with the stock response of judges in the lower courts that amount to being told to: ‘Suck it up buttercup, your kid does not want to see you’? The care and respect given to severance of the parent / child relationship in public law is notable for its absence in private law. There is a complete absence of respect and equity outside the sphere of public law proceedings.
We go to court for justice and fairness. We do not go there to throw away our hard earned cash or to be admonished with Katy Hopkins style slogans that we could get for free in an online rag. Other incantations like:
‘… children are not time-shares…’,
‘…you can’t make your child see another parent if they don’t want to Mr…’
‘…you can’t drag you child onto a plane / boat / bus…’
I have heard all these in the lower courts and felt compelled to bite my lip to avoid saying:
“Yes M’am, but you do not seem to be experiencing any problems or even having any misgivings about throwing my child under a <bleep> ’ bus.”
Let us be clear
It matters NOT who does it, whether it is the state, a family, friends or another parent who severs the parent / child bond, because the harm, pain and hurt caused are just the same.
It matters NOT whether this is done by a parent or by a child acting under their undue influence because the harm, pain and hurt caused are just the same.
It DOES matter that cases involving pure alienation are not treated to the same standards of care, diligence, humanity, rigour, education, learning or even common decency as other situations where a child / parent relationship is severed because the harm, pain and hurt caused are just the same.
This has been clear for a very long time
It has mattered at least since the case of Marquis v Marchioness of Montbeath 200 years ago.
It has mattered at least since Re L , when Dame Elizabeth Butler Sloss said, ’ There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem.’
It has mattered at least since Re O in , when Wall P described a ,’…clear case of PA.’
He added ‘PA is a well recognised phenomenon’…………… ad nauseam.
Fast forward to the present day and Re C where, eventually — after 5 out of only 6 years and 50 hearings, the court actually GOT IT!
The here and now
And so the can has continued to be kicked down the road for at least most of the new millennium. Suffice to say that the can is now rusty, worn and disintegrating. The first wave of child victims of PA that have been failed by Cafcass, social workers and the courts are now approaching the age where children that have been infected by the PA virus will have families of their own. We know this is causing them to start to ask difficult questions.
We do have some sympathy with those in the courts and the supporting professions who have inherited a very tricky legacy but we have no sympathy or respect for anyone that colludes with the emotional abuse of children regardless of their excuses.
There is a word amongst ‘lags’ for child abusers. That word is ‘nonce’ and it also applies to those who sympathise or collude with child abusers.
It is now time for the judiciary in the lower courts and the court professionals who assist them to stop procrastinating and to start doing the jobs that we all pay them for.
Enough is enough…
In the next piece we will be describing the many ways in which the treatment of cases involving parental alienation in private law differ from other cases involving the severance of child / parent relationships in public law.When the state severs a parent child relationship.