Gagging, Bullying, Control and secrecy

access black and white blur cage
Photo by Pixabay on Pexels.com

Since forming NAAP our experience has shown that only a few, who have taken their case to the family court, will not feel that they have — to a degree — been subjected to any single one of the above. Some will feel that they can claim to have been subjected to combinations of the above and others may even have been subjected to all of them. However, this occurs daily in the family courts yet it rarely, if ever, seems to generate even a single letter of copy drawing readers attention to probably some of the most open secrets that the nation will hopefully soon be looking back on as one of the biggest scandals perpetuated during their lifetimes. We are of course talking about our family court system.

Today’s Sunday Times says that:

The revelation that Sir Philip Green stands accused of racist and sexist abuse of his employees is perhaps the least surprising story of the year.’ 

The Sunday Times also say that, ‘…the sheer scale of non-disclosure agreements (NDAs) signed by the alleged victims of his abuse…’ is remarkable.

All of us who have experienced the family court system can observe that the scale of this latest PG scandal pales into insignificance compared with the magnitude of the one which has been brewing in the family court system and the way that it has or has not dealt with pa for decades and even centuries.

The Sunday Times reporting is balanced and they discuss the advantages to some employees and employers when confidentiality agreements are used in the context of disputes between employers and their employees. However, secrecy and confidentiality in the family court system does not achieve any of these purposes for its litigants. The balance of power and advantage weighs heavily towards the system with scant regards for the interests of the people that have no remaining alternative other than to use the system.

Instead, the gagging of litigants in family court ensures that serious abuses of the system thrive behind closed doors and away from the illuminating glare of daylight. The corrosive action of secrecy upon our human rights and upon fairness is spelled out by the Sunday Times if we simply compare the hidden nature of family proceedings with Philip Green’s strategies:

Yet, as Green’s repeated use of NDAs shows, this misses the crucial point: NDAs almost always perpetuate an abusive culture. The only way to stop harassment and abuse is to call it out, whenever and wherever it is found. NDAs do the opposite: they create a legal demand for secrecy.

The next section of the Sunday Times report leaves readers in no doubt about the highly caustic nature of malign secrecy. Indeed, it has been with us for a very long time — at least since the bible was written. The only way to stop its use is to call it out.

This sends a loud signal to abusers that they can act with impunity. As the repeated allegations against Green show, when one NDA is signed to cover up abusive behaviour, another will inevitably follow, because the behaviour will be repeated.

The issue is not only abuse. We know that the use of NDAs has been widespread in the National Health Service, both when parting ways with incompetent medical staff and to silence whistleblowers. But because of the inherent secrecy in the existence and content of NDAs, we have no idea of the precise numbers, or what specifically they have been used to cover up. This is not just wrong; it is plain dangerous.

There is truth in the adage from the Bible: “There is nothing hidden that will not be revealed. There is nothing kept secret that will not come to light.” Green spent a reported £500,000 attempting to silence coverage of his NDAs; much good it has done him. The film mogul Harvey Weinstein’s NDAs have returned to bite him. But for every Green and Weinstein, who have journalists poring over their activities, there are thousands of small-time sex pests and bullies of whom no one has ever heard. NDAs give them the power to carry on.

The Sunday Times draws some obvious and clear conclusions that are transferable to the family court situation where secrecy can easily be used to cover up misapplication of the law, flabby reasoning, lack of expertise and downright incompetence.

The answer, as always, is transparency. Theresa May has said that NDAs should not go further than protecting client confidentiality and commercial interests, and that the government is considering reform. In particular, they should never be used to cover up alleged crimes. 

However, the Sunday Times draws attention to another issue that is not aired anywhere near often enough. That is the rottenness that flourishes when peripheral areas are also deprived of illumination. The decay is not easily confined. It spreads out virulently. It’s roots are not confined to those that we deal with directly but they easily propagate within the growing mediums provided by the services and professions which feed directly off the family court system. The system is not confined to Judges, magistrates, Cafcass and litigants. An army of support staff in the court system also read judgments and maintain a compliant silence. Departments of social workers and their supervisors also see the judgements and file notes but have remained tight lipped. Solicitors and barristers, besides having direct involvement, also employ large numbers of support staff who also do not speak out. Next we have many experts who are called in. Some of them put their heads above the parapets to speak publicly of their experiences but not many do. Apart from this we have an army of groups and charities that have seemingly sat back and whined about their lack of funding whilst wringing their hands at the scourge of pa but have actually been onlookers watching a rotten system perpetuate itself whilst foraging for crumbs from the table.

The Sunday Times article summarises what we have said above, thus:

But the obligation for reform also lies with companies and organisations themselves. The existence of an NDA may be a secret, but no NDA is signed in secret. Lawyers know. HR departments know. Too many are complicit in their use. Boards and shareholders should be told how, when and why NDAs are being signed.

Attitudes to abuse have, thankfully, been transformed in recent years. The widespread use of NDAs comes from an era in which secrecy trumped openness. That must change.

At NAAP we cannot agree more with these sentiments. As a society we are now increasingly aware of how abuse, in all its manifestations, thrives in an atmosphere of silence, isolation and fear. All of that is changing but its progress is impeded by face saving and attempts to avoid the reputations of those who have benefited from a rotting system, have not spoken out and stood by idly to avoid their reputations being marred. At the end of the day all of this must take a back seat to the interests of the children who are at the core of the present system. It is high time that the interests of children were SEEN and not merely SAID to be paramount

‘…it blew up too soon for us.’

Sarah Parsons (Cafcass 2017)

grayscale photo of explosion on the beach
Photo by Pixabay on Pexels.com

Breach Birth of the Cafcass Child Impact Assessment Framework’ (CIAF)

The preceding article from Karen Woodall explains what Cafcass have done in developing the new framework and their aim in doing so. Here is a link:

Fogging the Issue: CAFCASS and The High Conflict Pathway

This article sheds some more light upon the history and reasons behind Cafcass endeavouring to redefine pa or Cafcass attempting to tailor the suit to fit the model in order to conceal a ‘mindset’ problem which Anthony Douglas described.

Cafcass originally christened it the ‘High Conflict Practice Pathway’ (HCPP) and it was supposed to have been rolled out and available this spring. Springtime has been and gone and as the autumn leaves fall we now have now been treated to the rebranded edition of the HCPP. This has now been called the ‘Cafcass Child Impact Assessment Framework’ (CIAF).

https://www.cafcass.gov.uk/2018/10/11/cafcass-publishes-new-assessment-framework-for-private-law-cases/

https://www.cafcass.gov.uk/grown-ups/professionals/ciaf/?highlight=child%20impact%20assessment%20framework

https://www.cafcass.gov.uk/about-cafcass/policies/

Reassuringly, Cafcass tell us, <fanfare>: 

  • ‘All private law practitioners will receive mandatory training in applying the framework’…and…
  • ’The training is due to be rolled out across Cafcass service areas from this month, with all practitioners expected to be trained by March 2019.’ 

Then my heart sank when I read: 

  • ‘As it is a development of our existing guidance, some of the issues will already be addressed in practice in current cases.’ 

Taking Stock

This was bitterly disappointing to read because it was not long ago that the Cafcass CEO, Anthony Douglas, squirmed when fielding questions from Rob Harrison at the Fnf seminar on 17th August 2017. The reason I say this is because the FOI data Rob presented to Douglas demonstrated that the majority of their English staff really could not give a monkey’s about free online training about parental alienation and emotional abuse. However, by comparison, online training about expenses claims was exceptionally well subscribed. Candidly, after these deeply revealing and embarrassing disclosures, Sarah Parsons coyly admitted: 

‘…it blew up too soon for us.’

When I read this I was already getting ready to call the paramedics because a cardiac event was imminent. 

A brief history of pa in the courts of England, Wales and Beyond

You see, parental alienation, or ‘parentally alienating behaviours’ as Cafcass have rebranded them are nothing new. Undue influence, whether done by manipulative chancers or alienating parents, is really nothing new. Parentally alienating behaviours made their recorded debut in the English courts 200 years ago. Parentally alienating behaviours are even described biblically and in antiquity. As a phenomenon, parentally alienating behaviours have been researched and described throughout the history of mankind until they received more recent judicial acceptance in Re L in 2000. Only 3 years later, in Re O, Wall J affirmed that:

 ‘Parental Alienation is a well recognised phenomenon’. 

This was 15 years ago. Therefore, my heart was banging out complex rhythms liked a massed samba band when Sarah Parsons uttered those immortal words:

 ‘…it blew up too soon for us.’ 

With incredulity I thought that a glacier would look lively by comparison.

Was it worth the wait

So finally, now that it is with us — after having ignored case law and seminal judgments that impacted significantly on their practice for a full 18 years-was it worth the wait ?

The short answer is NO.

As a brief exercise in corporate damage limitation it is commendable. However, as a means of safeguarding a growing cohort of children from emotion abuse it is an abject, miserable and shameful failure that having been exposed to daylight is now illuminated for all to see.

Whenever Cafcass have previously received justified criticism and hit difficult times it appears that instead of looking to the real problems and addressing them honestly and openly they have elected to gaze at their navals whilst appointing PR consultants to apply a coat of gloss varnish and weasel their way out of some pretty awful pickles. This strategy will not always work. Let’s hope that this turns out to be a time of insight. Instead of weasel words let us see some more of the sincerity Anthony Douglas appeared to show at the FNF seminar in 2017.

For those who are still interested here is some more of the back story to help you understand.

 

                                                                               

Re L in slightly more detail

If we turn the clock back to the year 2000, the Sturge and Glasser Report spoke of Parental Alienation / implacable hostility in literally the same breath as domestic violence. In the seminal joined case of Re L, V, M and H (Children) [2000] EWCA Civ 194  the court of appeal also considered a case where Parental Alienation had been alleged in Re M but the court of appeal supported the decision of the judge at first instance to reject the evidence of the jointly appointed expert. Unusually, but not out of character for a lady who made a few irrational shouts from the bench during her career, Dame Elizabeth Butler-Sloss also agreed with the judge at first instance’s finding that the court welfare officer’s view that the child had suffered ‘…emotional abuse…’ was ‘…unsubstantiated…’. Nonetheless the Court of appeal freely acknowledged that:

‘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.’

Therefore, the argument has NOT been about whether PA / implacable hostility exists because the phenomenon will have been known for 200 years this year. It has been about what we call it and as HHJ Stephen Wildblood said, ‘Is it a syndrome?…WHO CARES.’ Therefore, for Cafcass and the Welsh assembly to be banging on about the ‘syndrome’ 18 years after the argument was buried is disingenuous and a mischaracterisation of reality. Personally, I believe that when things are dead they should be left alone. It is not very nice to dig up dead things and play with them.

Dv v pa

However, the equivalence and equality of approach between domestic violence and parental alienation / implacable hostility appeared to end rather abruptly after the court of appeal’s judgment. By 2004 Cafcass had produced their first domestic violence framework in a timely manner within just 4 years of the Re L joined cases and the Sturge and Glasser Report. 

2004 to 2013

Later when Cafcass was moved from the umbrella of the Ministry of Education to the Ministry of Justice and Cafcass (Cymru) was brought under the wing of the Welsh Assembly in 2005. However the two organisations have remained closely linked and share a number of resources and functions. Cafcass Cymru seemed to operate independently for a while when it unilaterally commissioned the CAWAC study and started using a kind of High conflict Pathway. However both organisations showed an aversion to tackling pa although they had embraced much of the other findings from Sturge and Glasser. The reticence and apathy and antipathy was such that Cafcass (Cymru) and Cafcass did not get around to even commissioning a literature and caselaw review of Parental Alienation / implacable hostility, and, begin to form an evidence base for addressing the problem, for at least another 13 years in 2017. This was the first occasion they appeared to defer to the findings in the family court when they decided to take a peek in order to see what all the fuss was about. Before this commission, the workforce was informed by a short ‘knowledge bite’ on pa which had been compiled by their librarian. Indeed, the ‘knowledge bite’ that formed the learning resource for their staff until very recently was actually put together by their librarian and amounted to only a few sides of A4. The rate of progress and amount of interest shown by Cafcass towards their statutory duty to safeguard children from the emotionally abusive effects of parental alienation have been both glacial and shameful. I do not level this accusation lightly or without good reason. For anyone that thinks I am being harsh I would invite them to follow these instructions:

  • Take a look at the FOI requests on the voice of the child blog here, https://voiceofthechild.org.uk/cafcass-elearning-completion-rates-staff/ . FOI requests, for information about the take up rates of their employees for training in PA and emotional abuse, eventually showed that the attitude of their staff towards these topics was antipathetic and disinterested. There was far more enthusiasm towards information about claiming expenses.
  • Watch Anthony Douglas’ response when he hears the disclosures about the appalling attitudes and lack of professionalism that the data revealed: https://www.youtube.com/watch?v=sewELMUGs_o (from 11’ 00” is the best bit). Anthony Douglas reveals that there is also antipathy within his ranks to the phenomenon of Parental Alienation. This is unbelievable when one considers that there are important judgments concerning the acknowledgement of the phenomenon of implacable hostility / alienation dating back to 1983.  Indeed this year marks the bicentennial of the first known case featuring alienating behaviours in 1818. 

 

The Recent Story after 2013

As recently as 2013, in spite of the long history of caselaw concerning implacable hostility and parental alienation, Wales most senior social worker, Albert Heaney, spoke on behalf of the family justice network (which includes the CEO of Cafcass (Cymru) and claimed that, ‘there is a lack of general support, both in academic and legal sectors for this concept’. The network also includes Wales most senior family judges but their input is restricted to being ‘observers’ of the proceedings owing to their judicial oath and strict rules concerning judicial independence. The Terms of reference for the network also confines the input of the judges to being mere ‘observers’. The FJN’s pearl of wisdom was brought to us 10 years after former president of the family division, Wall J, described parental alienation as ‘…a well recognised phenomenon’ ; 9 years after another president of the family division cited Wall J’s example and 4 years after HHJ Bellamy stated, ‘The concept of alienation as a feature of some high conflict parental disputes may today be regarded as mainstream.’ Between 2003 and Albert Heaney’s pronouncement in May 2014 there were over 30 reported cases featuring implacable hostility or parental alienation. Only 9 months beforehand the court of appeal heard Re A and the incoming president of the Family Division remarked. 

‘Drawing matters together, whilst I do not conclude that the outcome ordered by the judge is, of itself, wrong and therefore to be set aside, I am sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the Art 8 rights of both M and her father, and also by the deficits in the judge’s analysis which I have now identified, to conclude, in the words of CPR, r 52(11)(3), that the outcome is ‘unjust because of a serious procedural or other irregularity’. For the previous systemic failure to end in a hearing which itself was highly unsatisfactory and where the judge has failed to conduct a sufficiently thorough analysis, makes it almost inevitable that this court will consider that it has a duty to intervene with the aim of establishing an effective and full rehearing.’ 

Sadly, even an intractable case, where the proceedings were conducted so fecklessly and hopelessly ineffectively, would appear to have failed to grab the attention of the family justice network and its members.

Intractable hostility does not appear to have made it onto the FJN agenda again until 2017. I cannot say exactly when in 2017 because the minutes of their meetings are no longer published. (So much for transparency!) Cafcass appear to have hijacked the committee and continue to do so. Yet again the number of reported cases involving PA / Implacable hostility continued to grow and Cafcass appeared to continue ignoring them.

The courts process appears to have irrationally embraced mediation for intractable dispute resolution despite the early warnings given by Sturge and Glasser in 2000 which gives us good authority for the futility of alternative dispute resolution where a parent is implacably opposed to contact. 

The term ‘implacable’ is used here to describe the intensity and unchanging nature of the hostility and the fact that any amount of mediation is unlikely to result in an alteration in the hostility felt by the parent.’

This is yet another instance where the ‘experts’ advise has been unceremoniously ignored without the benefit of a competing evidence base. Decision making processes that concern the futures and welfare of our children have continually been informed by ideology and dogma masquerading as research. It is a shameful paradox that the legal process used to determine our children’s best interests and welfare, which is supposed to be predicated upon evidence, is actually devoid of a coherent and intelligible evidence base.

By ignoring and effectively failing to properly even acknowledge the existence of parental alienation / implacable hostility — for 14 years (if we regard Wall J ’s pronouncement as acknowledgment) and 17 years (if we accept the Sturge and Glasser report as confirming the existence of these dynamics in the court of appeal) — we believe that Cafcass and Cafcass (Cymru) have failed and continue to fail miserably in their statutory duty to safeguard children from an increasingly well known and ever more common dynamic which is emotionally abusive.

The report commissioned by Cafcass (Cymru) from Cardiff University is a hopelessly inadequate, hurriedly cobbled together and cringeworthy response to a problem that has been ignored and unceremoniously swept under the carpet until very recently.

To plead with these fanatical ideologists who are more keen to preserve their own skins than they are to fulfil their statutory duty is patently wrong and simply not warranted. Rather, they should be explaining to the electorate why they have consistently failed to treat a burgeoning body of primary evidence in the form of case law with the urgency and respect it so rightly deserves. Those who could have challenged them earlier should now also hang their heads in absolute shame because they have prolonged the abuse and pain of children needlessly.

Cafcass Child Impact Assessment Framework (CCIAF)

NAAP Warning:

If you are an alienated parent, emotionally intelligent and have a family history of heart disease, you may wish to get a paramedic on standby BEFORE reading the CCIAF

close up photography of crying woman next inside room
Photo by Ikon Republik on Pexels.com

originally christened it the ‘High Conflict Practice Pathway’ (HCPP) and it was supposed to have been rolled out and available this spring. Springtime has been and gone and as the autumn leaves fall we now have the rebranded edition of the HCPP. This has now been called the ‘Cafcass Child Impact Assessment Framework’ (CIAF).

https://www.cafcass.gov.uk/2018/10/11/cafcass-publishes-new-assessment-framework-for-private-law-cases/

https://www.cafcass.gov.uk/grown-ups/professionals/ciaf/?highlight=child%20impact%20assessment%20framework

https://www.cafcass.gov.uk/about-cafcass/policies/

Reassuringly, Cafcass tell us, <fanfare>: 

  • ‘All private law practitioners will receive mandatory training in applying the framework’…and…
  • ’The training is due to be rolled out across Cafcass service areas from this month, with all practitioners expected to be trained by March 2019.’ 

Then my heart sank when I read: 

  • ‘As it is a development of our existing guidance, some of the issues will already be addressed in practice in current cases.’ 

This was bitterly disappointing to read because it was not long ago that the Cafcass CEO, Anthony Douglas, squirmed when fielding questions from Rob Harrison at the Fnf seminar on 17th August 2017. The reason I say this is because the FOI data Rob presented to Douglas demonstrated that the majority of their English staff really could not give a monkey’s about free online training about parental alienation and emotional abuse. However, by comparison, online training about expenses claims was exceptionally well subscribed. Candidly, after these deeply revealing and embarassing disclosures, Sarah Parsons coyly admitted: 

‘…it blew up too soon for us.’

When i read this I was already getting ready to call the paramedics because a cardiac event was immenent. 

You see, parental alienation, or ‘parentally alienating behaviours’ as Cafcass have rebranded them are nothing new. Undue influence, whether done by manipulative chancers or alienating parents, is really nothing new. Parentally alienating behaviours made their recorded debut in the English courts 200 years ago. Parentally alienating behaviours are even described biblically and in antiquity. As a phenomenon, parentally alienating behaviours have been researched and described throughout the history of mankind until they received more recent judicial acceptance in Re L in 2000. Only 3 years later, in Re O, Wall J affirmed that:

 ‘Parental Alienation is a well recognised phenomenon’. 

This was 15 years ago. Therefore, my heart was banging out complex rhythyms liked a massed samba band when Sarah Parsons uttered those imortal words:

 ‘…it blew up too soon for us.’ 

With incredulity i thought that a glacier would look lively by comparison.

So finally, now that it is with us – after having ignored case law fand seminal judgments that impacted significantly on their practice for a full 18 years- was it worth the wait ?

The short answer is NO.

As a brief exercise in fallacious argument and corporate damage limitation it is commendable. However, as a means of safeguarding this growing cohort of children from emotional abuse it is an abject, miserable and shameful failure. Having been exposed to daylight our hope is that it will hopefully be quickly consigned to the waste paper bin.

We have already heard that some folk and organisations see the mere mention of PA, albeit reinvented and redefined, as a step forward. However, there are still serious questions to be answered, such as:

  • why has it taken 18 years for cafcass to react to pertinent case law and begin to design a framework for dealing with parentally alienating behaviours?
  • what about the damage that has been done to children and families whilst cafcass have been denying the very existence of a phenomenon that has been the subject of findings in the family courts?
  • After the landmark case of Re L in 2000 and the Sturge and Glasser report, why did it take only four years to develop a domestic abuse strategy but 18 years to publish a strategy for dealing with PA?
  • Who gave consent for cafcass and its practitioners to cherry pick legal developments they like and ignore those that are not appealing and why should cafcass not be bound by the same rule of law as the rest of the uk and its public bodies?

There are many more questions but this will do to get the ball rolling. But’ the mere fact that we have to ask such fundamental question does give rise to another serious question. That is, IS THIS ORGANISATION EVEN FIT FOR ITS INTENDED PURPOSE IN THE FIRST PLACE?

Whenever Cafcass have previously received justified criticism and hit difficult times it appears that instead of looking to the real problems and addressing them honestly and openly they have elected to gaze at their navals whilst appointing PR consultants to weasel their way out of some pretty awful pickles. This strategy will not always work. Let’s hope that this turns out to be a turning point and a time of insight.

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

architecture black and white challenge chance
Photo by Pixabay on Pexels.com

…’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.

http://www.metaphysicspirit.com/books/The%20Demon-Haunted%20World.pdf

When the ‘faecal matter’ hits the fan!!

black vent close up photography
Photo by Jess Watters on Pexels.com

 

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’.