Article
The family courts are there to help children, not get 'justice' for parents
If one parent is determined to remain hostile to the other, there is not much the courts can do to change that
'Fathers 4 Justice has pronounced the Family Justice Review a monstrous sham. In fact, it is a sober, intelligent and sensitive document.' Photograph: Nils Jorgensen/Rex Features
In more prosperous times, when people had the luxury of focusing on personal miseries and fears – instead of the oligarchic elites, and their tame politicians, who ruined everything – the Norgrove Report would probably have received much more attention. During the boom, politics seemed a lot more personal. Men dressed as superheroes to publicise the cause of separated fathers. Newspapers ran campaigns calling for the "secret family courts" to be held to account.
It's true that much of this vocal disgruntlement has been in abeyance precisely because so many campaigners hoped that David Norgrove's report into the workings of the family justice system would address the problems that they felt so strongly about. But there is still something unsettling about the lack of prominent interest in such an important document, one that addresses something as fundamental as protecting the children who suffer when families don't function in their best interests.
The pressure group Fathers 4 Justice, not the headline-grabbing force it once was, pronounced the Family Justice Review "a monstrous sham". In fact, it is a sober, intelligent and sensitive document. Its only "monstrous sham" is one it shares with Fathers 4 Justice. The family courts system is there to act in the best interests of children. It is absolutely not in existence to provide "justice" for their parents, and it is wrong that the current nomenclature continues to foster that mistaken impression.
The other day, I spoke to a person whose spouse, they believe, killed their son. In the criminal courts, the courts that exist to serve justice, the spouse was found not guilty. In the family courts, which rule on what's best for a child, it was still decided that this parent should not have contact with the dead baby's sister. Justice is pure and certain, much more pure and certain than mere risk-management. It dictates that this parent did not kill their child, and must therefore be considered innocent.
Practicality, however, suggests that a grieving parent who does not accept this verdict, may in fact fear for a remaining child, so much that it would be torture for them to be told they must accept justice and abandon their own convictions. The family courts don't mete out justice. They make difficult calls about risk, emotional as well as physical, in situations that range from intractable to horrific.
The latter tends to pertain when a local authority, for example, is attempting to remove an at-risk child and place them in care. It is this fantastically vexed area that Norgrove focuses on most, and with solid recommendations. But these hard, heartbreaking cases are not what animates the ire of Fathers for Justice. This group sees the family courts as discriminating against fathers in private law, when separated parents are unable to agree on how to arrange their continuing shared parenting. The group's desired solution is for equal access to the children of a separated relationship to be the starting point in all cases. Norgrove, after signalling in an interim report that it might be adopted, has now rejected this. Quite right.
Imagine the difficulty that would have caused in the case of the not-guilty spouse whose child had nevertheless died of violence while in their care. Anyway, under the Children's Act 1989, every child in every case has to be treated as a unique individual. It would be no more correct to assume that all children should ideally spend exactly 50% of their time with each parent than it be would to assume that the primary carer should always have first dibs. (Even though that's how things often play out in reality, thus promoting the illusion of gender bias.) This centrality of the unique child, incidentally, is another reason why the family courts don't function in the way the law usually does, because there is no such thing as precedent. Every new case is conducted as if no case had ever been conducted before, with a unique child, in a unique situation, at its centre.
In the years that I have written about the family, I have spoken to many men – and some women – who correctly feel that their protracted trips to the family courts did not provide a result that was fair to them. But just as warring couples go into therapy, each expecting that they can persuade the therapist that they are right and their partner is wrong, warring former couples go into the family courts expecting, if not justice, vindication at the very least.
Sometimes, a parent may get vindication. But sometimes the victory is pyrrhic. If one parent is determined to remain hostile to the other, and expresses that hostility by messing the other parent about, or by guilt-tripping a child, then there is not really much that the courts can do to change that. Sad and tragic, selfish and wrong – but an adversarial situation that no judge can call to a close with the strike of a gavel. Only the two main players themselves, in the end, can do that kindness to their kids, together.
A wise document, the Norgrove Report acknowledges all this. It notes the high and mistaken expectations that bring former couples to court. It emphasises that there is not enough focus on providing mediation before recourse to imagined "justice". Tacitly, it acknowledges that in the family courts, private law cannot focus on what's fair, only on what's achievable.
It is so terrible, the fact that these complicated legal structures have to exist, to intervene in something as potentially joyous as families. I suppose it's because what comes naturally to other mammals has become so complex, so laden with expectation, and so emotionally charged for humans. The awful fact is that some families are dangerous, and full of cruelty. Far, far too many.
It's hard, being human, particularly the bit where you have to deal with other humans, and most of all the part where you create new humans, in a world so full of stuff that can go awry. Human emotions are messy, and surge round families creating havoc. People can be supported if they wish to find resolution. Mostly, people manage to negotiate it all themselves. But those seeking justice?
Well, that's a special sort of resolution, and also a limited one. It's a kind of resolution, I'm afraid, that the family courts should make clear they are not in the business of providing.
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User Comments
GrandpasBarn
11 November 2011 9:41PM
I spoke to a person whose spouse, they believe, killed their son. In the criminal courts, the courts that exist to serve justice, the spouse was found not guilty. In the family courts, which rule on what's best for a child, it was still decided that this parent should not have contact with the dead baby's sister
So, found innocent in an open public court, but declared guilty in a closed secret court.
Nope, nothing wrong with the Family Court system
Hortblaler
11 November 2011 9:42PM
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Stiffkey
11 November 2011 9:43PM
Parents matter, too.
The idea that the needs of the child trumps all else is simplistic nonsense. Nobody would ever want to see a child put in harms way, but the notion that the parents' needs can be set to one side is inhumane.
EvaWilt
11 November 2011 9:45PM
Brave piece Deborah.
Like most of us I suspect, I've seen friends and family go through horrible break-ups where couples have not been able to come to arrangements about custody and contact time. From one couple where one partner moved to the other end of the country to make visiting costly and almost impossible to others who rowed constanly on front of their kids at every changeover making life hell for th kids.
I did work as a mediator for a time and it isn't always an option - there are some where the anger and pain is so strong that it just has no chance.
Deborahjaneorr
11 November 2011 9:45PM
There is no guilt or innocence in family courts. It's not what they're there for. And the person was convicted of child battery. What would YOU decide?
Taku2
11 November 2011 9:46PM
Good article, Deborah.
This has been and continue to be an exceptionally complex area of human affairs, as it were. The Courts, based on what I have heard several High Court Judges saying in a recent TV programme, are about interpreting and applying the law; which is not necessarily the same thing as being fair or judicious.
Having been privy some some of teh deliberations which takes place in care proceedings, I can there is a natural tendency for the proceedings to try to be 'fair' to all the parties - child and parents, and that it is only in the final hearing, which could take an extended amount of time as a result of the pursuance of fairness - that priority is really given to the child's welfare.
Deborahjaneorr
11 November 2011 9:48PM
Absolutely. Sadly, many people have had some sort of involvement in these situations. I wish people could get away from the idea that it's a sexual politics issue. It doesn't help.
Deborahjaneorr
11 November 2011 9:50PM
Parental "needs" aren't put aside. But the needs of the child are paramount. You know, like parents are supposed to treat them. The disaster is that sometimes one or both parents don't do that, not that the family courts do.
LinksFahren
11 November 2011 9:50PM
I'm a father whose experience of the family court system has been entirely positive.
You can easily spot us - we're amongst the men walking around normally at ground level not dressed as Batman. With our children. We're easily mistaken for averagely decent fathers who have never had a family court rule against them, I admit.
Deborahjaneorr
11 November 2011 9:52PM
It isn't about not caring. It's about the situation you describe being hard to change. I certainly don't deny the idea that maternal vindictiveness is an appalling feature of many cases. At all.
Deborahjaneorr
11 November 2011 9:54PM
Parenting "largely privatised". When did this awful thing happen?
LinksFahren
11 November 2011 9:55PM
We're easily mistaken for averagely decent fathers who have never had a family court rule against them, I admit.
should be
We're easily mistaken for averagely decent fathers who have never had a family court rule upon them, I admit.
Never so stupid as when I'm being clever...
fry10d
11 November 2011 9:59PM
Family Courts.
A farce of injustice kept that way to keep the status quo.
The system is not designed around the needs of the child at all.
I know so many men who go time and time agan to the courts so that their child can have some access to their father.
The courts fiddle around.
Clipboards are brought out.
The lawyers get paid.
Nothing changes.
Meanwhile, the child's life without their father ticks rapidly away.
Spite is a very unpleasant emotion.
LinksFahren
11 November 2011 10:01PM
Parenting "largely privatised". When did this awful thing happen?
Perhaps U00010 means that social care (rather than child care) has been largely privatised? I think that "largely" is overstating the case but there has been a lot of outsourcing, as I'm sure you know, and I sometimes wonder if there isn't a peverse incentivisation at work. Not consciously, of course, but if people are contracted to identify and care for children who cannot be supported in their own familes then there may be a danger of overzealousness.
zapthecrap
11 November 2011 10:01PM
Parenting "largely privatised". When did this awful thing happen?
Gordon Brown , labour or any other fictional liberal enemy of the right.
Deborahjaneorr
11 November 2011 10:04PM
But in private law, which is what this piece is about, the parents themselves decide to involve the courts.
Bedivere434
11 November 2011 10:05PM
It is a bit of a pity that the author really, really does not understand what a Court is, what law is and how the Courts work to apply the law. If she had, she could have written a much better article.
I think the other thing which is missing is that the family Courts are only one part of the complex system for dealing with dysfunctional or divorcing families, and really not a very important part. True, they set the boundaries. But most cases go nowhere near any boundary and so what the family Courts do is not that important for most families with difficulties.
Deborahjaneorr
11 November 2011 10:06PM
Parenting IS private. You think it should be a public service? Boarding schools at birth? Procreation licences? What?
maryellenwalton
11 November 2011 10:07PM
Sadly, I agree with Eva.
The monumental short-sightedeness & selfishness of adults often means that resolution is impossible.
Even friends I know who began with the best intentions & for a while seemed to be genunely trying to put the children first rarely manage it long term.
The problem in these cases usually starts when new relationships are formed & especially when there are children with new partners. One of my friends is left dealing with a broken hearted child whose father has just moved with new wife & baby to France, with seemingly little thought to how this would impact on them.
Then I have male friends desperate to mainain contact but who are sidelined by similar situations when their ex wife remarries/ cohabits.
Sometimes I think my ex actually did us a favour by ruthlessly severing contact completely when he left.
I would love to see some articles from parents who actually do make it work, if only to convince me it is still possible.
U00010
11 November 2011 9:39PM
Where is the profit in resolving issues when the system has been largely privatised?
Where is the incentive to resolve issues?
THE single worst thing that ever happened with childcare was privatisation.