‘Children have a right to choose’… appraised.’ Part 1

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…’At his / her age, if he / she does not want contact then I cannot make them do something they do not want to…’

‘You cannot force a child to do something it does not want to do…’

‘As a teenager their wishes and feelings are likely to be determinative / decisive…’

‘As a young person they have the right to choose where they live…’

‘I’ve been a judge for over 20 years and I know what I’m talking about…etc’

These are just some of the things which have been relayed to us during this last week alone which judges and cafcass have stated in parents’ cases. Most parents have probably heard each of them at least a hundred times before. There does seem to be a trend of delivering some poorly considered slogans as a substitute for properly considered judgments and the application of the statutory welfare checklist. There does seem to be a Katie Hopkins school of judicial conduct. It flies in the face of the seriousness and draconian nature of decisions which, in many cases, amount to the severance of a relationship between a parent and a child. It is another example of the scourge that Sir Andrew McFarlane recently described in his speech to the Nagalro conference.

‘…there is more that can be done under the present regime to avoid the disaster of a contact case becoming wholly intractable with the result that a child is cut off from contact with the absent parent and, often, grandparents and other important family members.’

These are poignant words from Sir Andrew, which we fully support, but this morning’s postbag alone shows that there are a few cases where his imparted wisdom appears to have fallen on deaf ears.

Referring to four private law cases where contact had effectively been severed Sir Andrew McFarlane added that:

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

The continued trotting out of these slogans — so thoughtlessly when the stakes are so high — adds validity to Sir Andrew McFarlane’s comparatively carefully chosen words. Indeed, the unashamed use of such poorly considered slogans, as those listed above, illustrates that his remarks regarding lack of ‘…respect in terms of time, resources and judicial  concern,’ were entirely deserved. For service users of the family courts we think that too many paying customers leave the court feeling that they have been short changed, ignored, and treated with the utmost contempt.

This article sets out to unpick the unwise words in these commonly used slogans and give parents a basis for questioning the conventional wisdom. It is a scandal that the courts have adopted such a hollow, lazy and feckless paradigms for so long. It is also shameful that they continue to behave in this way without flinching and in the full knowledge that they are both facilitating and providing a veil for the continued and unfettered emotional abuse of children.

Let us examine the general content of the headline sentences. Like much of the discourse in the application of the law surrounding contact they each contain fallacious rhetorical devices. The ‘straw man’ fallacy is the most popular. A straw man is a mischaracterisation of a proposition to make it easier to attack. I will explain how this is engaged in these situations and why it is particularly disingenuous in cases involving parental alienation.

Typically, after contact has been severed, a targeted parent applies, in good faith, to the court to have contact restored. Usually, the reasons for severing contact will be weak, frivolous, disproportionate, contrived, fabricated or simply non existent. The applicant targeted parent does not usually even suggest the use of force to restore contact and they will often have had experience of other instances when their relationship with their children has been severed. They will have experienced just how easy it is for an alienating parent to literally flick a switch and give the child permission to have contact with the targeted parent. Remember that alienation does not usually just happen. When targeted parents analyse their experience since the birth of their children they will usually realise that their children have been used as currency and the seeds will have been sown long before their case arrives in court. 

At the recent EAPAP conference in London we heard one internationally acclaimed authority after another tell us how easy and incredibly quickly alienation can be ended simply by the alienating parent having a change of heart and ‘giving permission’ to the child to resume contact with the targeted parent. Note, this does not involve ‘forcing’ or ‘making’ the child do anything. It merely involves a parent giving permission and encouraging contact instead of opposing it. There are many courses of action available to even unimaginative parents and the courts before it is ever necessary to think of ‘forcing’ or ‘making’ children do anything.

To create the alienation standoff the alienating parent will have, either covertly or overtly, actively exerted their undue influence over the child in order to thwart contact. At the EAPAP conference we heard one expert after another tell us how easy and effective it was for alienating parents to send out the signal that they disapprove of contact. By the same token it is just as easy and effective for them to literally flick the switch and encourage contact. Of all the reunification methods spoken about or described this was unanimously regarded as the simplest, quickest and most effective. 

Readers will note that in this narrative there is no mention of ‘making’ or ‘forcing’ a child to do anything whatsoever. And, this is where the straw men come in. Firstly, the applicant parent usually wants no more than the cooperation of the targeted parent to bring about a change which can be accomplished ever so easily and ever so quickly. However, instead of addressing the real problem i.e the alienating parent, the judge or Cafcass engages the first straw man by suggesting that we should be asking the child to give permission and not the parent. This is the first deliberate mischaracterisation. Secondly, Cafcass and the judge engage another straw man and a false dichotomy. A false dichotomy is also known as the fallacy of the missing middle. It involves portraying arguments or choices as being between two extremes and missing out a range of choices between the two extremes. In this case, on one extreme we have a parent opposing contact and using their undue influence to thwart their child’s relationship with the targeted parent whilst at the other extreme Cafcass and the judge present the only available alternative as being — very unpleasant sounding — ‘forcing’ or ‘making’ the child do something it does not want. Other language is often used to reinforce the false dichotomy such as ‘dragging the child to contact’ or ‘pushing’ them into a car. In reality though this is not what the applicant has ever asked for. All they want is the cooperation of an adult alienator to do something that will cost them nothing and which will uphold and encourage their children to enjoy a relationship with the other parent. In other words they are simply asking a court to get the other parent to do their job, take and use parental responsibility. All that is actually being sought is such a far cry from the portrayal of cafcass and the judiciary in these situations. These absolutely vacuous exhortations from Cafcass and the bench do nothing to foster respect or trust in either of them. 

In the next article in this series we will examine the law regarding children’s autonomy that is often used in these cases. This is equally as questionable and the foundations are sometimes flimsy. 

As always, criticism and comments are most welcome.

NOTE The family law arena is packed to bursting with fallacious argument and logical fallacies. Anyone embarking on their journey through the family court system would be wise to acquaint themselves with more information and familiarise themselves with how to identify when these are being used against you. Here, is a link to the late great Carl Sagan’s book, ‘This Demon Haunted World’,  in which he discusses logical fallacies in more detail. The appropriate chapter is chapter 12 and it is appropriately named, ‘The fine art of baloney detection’. It can be found on page 189. This is worth its weight in gold.


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