When the ‘faecal matter’ hits the fan!!

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These are our comments on the article below from Karen Woodall. The title refers to the dilema now faced by cafcass and others who aree now having to make adjustments having ignored years of developments in the case-law.

 

Introduction

For a while we have been pointing out that the issue with PA is no longer one of why is alienation not accepted more widely but rather why have so many people flagrantly ignored developments in the law which govern their respective areas of practice? Parental alienation HAS been a fact of legal life which the likes of Liz Trinder et al. have been allowed to sweep under the carpet by a system that really should know better.

Cafcass’s dillema

Anthony Douglas was effectively outed at the fnf seminar last year over the poor training and even poorer attitude of practitioners towards PA and emotional abuse. In the aftermath, like a startled rabbit caught in the headlights, Sarah Parsons exclaimed, ‘It blew up too soon for us’. This caused me to chuckle because it was 17 years after Sturge and Glasser and Re L. It was also 14 years after Wall J described PA as ‘A well recognised phenomenon’. How much more time did Cafcass want to wake up, small the coffee and react to judicial findings? It seems that glacial speed was too fast for Cafcass. I wonder whether Parsons would have preferred to work at the rate of even slower continental drift.

These events, coupled with major conferences and a generally more vocal and pointed advocacy to increase public awareness of PA have brought us to the present situation where Cafcass find themselves in a bit of a pickle. For Cafcass it is a matter of explaining / excusing years of antipathy and dormancy, finding excuses for failing to adequately safeguard almost a generation of children from an emotionally harmful dynamic and developing a way forward that enables them to save face or at least salvage a little credibility. By any reckoning this is not an easy job they have given themselves. I’ll wager that Anthony Douglas is glad that he delegated it to someone else whilst continuing the countdown to retirement. For many others it is a case of failing to speak out about something they knew was wrong. 

The family justice research production line

It also never ceases to amaze me that Trinder et al. have so much influence and credence when the procedures of peer review and vetting, which are mandatory in other spheres, are routinely circumvented when it comes to providing studies and developing policy for the people we hold most dear: OUR CHILDREN! 

Whereas, virtually every other contract in local or national government will involve a transparent and audit-able process of inviting tenders, tendering, tender appraisals, vetting and finally the awarding of a contract to give best value for money and ensure that the contract fulfils its intended role, all of these public safeguards and any semblance of transparency suddenly evaporate into the ether when it comes to studies which inform policy in the family courts. 

Typically, this is the opaque and apparently clandestine process preferred by the system that professes to support ‘open justice’. Firstly a topic will arise at the family justice board (if and when it ever decides to convene) which is then passed down to the family justice council. This is where a few favoured (usually feminist) academics are on tap to jump at the opportunity to carry out more research. They either do this themselves or pass it on to someone else from a small and exclusive cabal of like-minded researchers. 

Secondly, funding is provided by either the MOJ or the Nuffield foundation. In the later case this is a trust, whose board of trustees includes a serving appeal court judge, Sir Earnest Ryder. He is also a member of the Family Procedure Rules Committee and was formally a judge of the Family Division of the High Court. http://www.nuffieldfoundation.org/trustees

I’m not suggesting that there is even a hint of impropriety involved but most people would find the  professional closeness and symbiosis of the relationships a little concerning and wonder why people in these positions simply avoid getting involved in a way that is bound to arouse suspicion in the first place. 

Thirdly, a report is prepared that typically references other work that has benefited from similar funding and been authored by members of the same cabal. Thus, the system is self aggrandizing and the professional standing of these academics is elevated mutually by referencing each others work. The reports are not peer-reviewed. The family justice council receives and praises the work. In deference to the judicial standing of members of the council, these reports are typically not subjected to any great degree of rigour or scrutiny. To outside observers it does look like very nice work if one can get it.

Lack of transparency and policy

I can never explain why, in a situation that involves the merging of judicial and executive functions of government, there can be such a lack of transparency and so little scrutiny. It makes it much harder to argue for improved transparency in the lower courts when senior judges and governing bodies are relatively opaque and set such a poor example illustrating how it should be done. 

But, most worryingly, it means that policy in family law is influenced disproportionately by ideologies and opinions emanating from a tiny gene puddle of contributors. Consequently it has evolved in the same way as an island population and is desperately in need of outside input to encourage both genetic and ideological diversity.

Trinder et al.et al. are now approaching an age where they may soon be hanging up their mortar boards. The family justice system should not allow such a golden opportunity to introduce some new blood into the strain if we are to avoid it becoming a family of inbred village idiots.

Rhetorical fallacies

The use of the ‘pro’ prefix is yet another clumsy and unsophisticated attempt to manufacture a straw-man. It is a Katy Hopkins style of name calling that has no place in the judiciary because even sun readers are now tired and p*****d off with it. In PA v CK & Ors [2018] EWHC 2004 (Fam), HHJ Cohen was not the first judge to speak of alienation experts in pejorative terms but I believe he was the first to do so whilst engaging more fallacious devices of rhetorical argument than any other judgment I have ever read. It reads like a more splenetic jeremiad than even Victor Meldrew could have contemplated. It is a glowing example of how one should not present one’s case, unless one is past caring about accountability, detail and rational thought. Such a rabid judgment requires the judge to regard all appearing before him with the utmost smarmy contempt and as upstarts with the temerity to breathe the same air. Indeed, the late Carl Sagan, the author of ‘The baloney detection kit’ in his great book ‘this demon haunted world’ would be spinning in his grave if it were possible to communicate this judgment to him.

Cleary, splitting and false dichotomies serve a similar role judicially to that when applied by alienated children to their plight. Here too, it conceals the reality from public view and plasters over the cracks. However, it is getting harder to be a bystander and watch quietly because it is being done with an arrogant swagger that is not deserved when a more appropriate reaction would be to hang one’s head in shame.

Autonomy of Children – what does the law actually say?

In virtually every other aspect of family law, when the courts address the issue of children’s autonomy the case-law tells us that provided they have sufficient maturity then, children can say yes to things which will benefit them or they can say no to things which are harmful. I do not know where the law has allowed them to make a mistake that would affect their welfare or best interests. Therefore, it is clearly wrong to leave important choices entirely to children where they would benefit from having another point of view and it is utterly wrong for courts to burden children with decisions that they do not yet have the intellect, experience or sophistication of thought that they need to do so. We believe that it is always wrong to rely solely upon a single item in the welfare checklist. The law does give judges a degree of discretion upon the weighting of the items in a list and even whether certain items are applicable but nonetheless it is also regarded as a sound discipline to appraise the items on the list. Put simply, unless each item is carefully considered then how can a court possibly decide whther it is relevant or not?

Autonomy without capacity

If elderly people who are losing their marbles are given responsibility for decisions that their diminishing capacity renders them incapable of making then we would without question regard this as psychologically abusive. How can we justify making children responsible for making life altering decisions when they are equally as vulnerable? It is equally as abusive and fundamentally wrong. Family law text books and articles use the word ‘paternalistic’ in a pejorative sense to imply controlling behaviour, to ridicule and pour scorn upon the notion of protecting children from such harm. This is yet another mischaracterization. The correct word is actually ‘caring’.