Mr Justice Coleridge and intractable contact disputes: change is in the air

Children|December 1st 2010

John Bolch of Family Lore and Judith of Judith’s Divorce Blog have posted irreverent responses to the speech given by Mr Justice Coleridge to the Association of Child Lawyers on Friday. Long-time readers of this blog will recall that I have previously applauded Mr Justice Coleridge for his bold and outspoken views on family breakdown. His latest speech touched on another sensitive and controversial subject: the plight of children who become caught up in ugly contact disputes between parents.

You can read the full text of Mr Justice Coleridge’s speech here. It has gained surprisingly little coverage in the mainstream press, but I believe that some of my readers will find it very interesting. However it is lengthy!

To summarise, in the words of The Times: he argues that judges are “giving the ‘sacred cow’ of children’s views too much uncritical weight… This ‘flabby’ judicial approach has led to people not taking family judges seriously and flouting their orders… Court orders over contact with children must be enforced swiftly and rigorously”. The post on Family Lore refers to what he describes as “the unintended slippage in the authority of the family court which has been creeping in and gathering momentum over the last decades and which we can no longer afford to ignore”.

I must admit that the tone of his speech did jar a little for me as well. I thought it was unnecessary for a senior judge delivering a serious speech about the approach commonly taken by judges in children cases to be so overly modest. As I was whiling away time on the Wattbike this weekend, and with these issues in mind, my thoughts drifted to some wider comparisons in the news. As a society, why are we failing so dismally to respect authority?

Right now, the mighty USA is having its state secrets mercilessly exposed by Julian Assange and those who work with him on the Wikileaks site. I deliberately did not read any of the diplomatic cables that have been released on the site, because I don’t have the right to read what was clearly not meant for me or anyone else for that matter, bar the US government. I respect the right – and need – of the US Government to keep confidential communications confidential. Correspondence from the most senior lawyers in the US Government addressed jointly to him and his legal representatives fell on deaf ears and Mr Assange published the documents.

He hasn’t however threatened to publish the state secrets of Russia, China or Iran. I suspect that if he did so he might not survive long enough to press the button and upload those files. Perhaps the USA is seen as “low hanging fruit”; in the eyes of the world it has weak, conciliatory leadership, so why not take the chance to publish and be damned?

The lack of respect for authority, discipline and the rule of law, dressed up by him and his supporters with high-minded excuses (for that is all they are) is an example of conduct which, I believe, equally extends all the way down the scale into our own little worlds. I‘m thinking in particular of family law cases and whether in the breathtaking perjury and thereafter deliberate non-payment of a colossal court order (as we saw in my last post), or disobeying a family contact order, the risks are considered so low level they are worth taking. In contact disputes especially, hours of court time are squandered, thousands are spent in legal fees and months are spent waiting for fresh hearings. The couple leave the court no closer to closure, not because there isn’t a court order in place, but because one or both of the parties won’t obey it – safe in the knowledge that the court won’t do anything about it.

Let me quickly add a caveat. Firmness and continuity of approach doesn’t guarantee a result either – but at least it lets everyone know where you stand.

Mr Justice Coleridge is now saying the judiciary needs to strongly reassert itself to overcome the lack of respect and perception of weakness that many have when appearing before the courts. Overall he wants to get authority back into the family courts and have court orders obeyed.

I couldn’t agree more. It’s high time for an end to the “touchy feely” approach around children. Instead it’s time for some “tough love”, by not only shining a spotlight upon the child but looking firmly at the parents too. Why should we not have an approach where all the family – parents and children – know that a judge will consider the entire family, and furthermore, that a judge’s court order must be obeyed?

The drawbacks of course are obvious at first sight. Not every judge is as fair minded and perceptive as Mr Justice Coleridge, and tough love doesn’t mean bullying by an unsophisticated judge. Also if a parent doesn’t obey, then who ultimately bears the consequences? It is the child at the centre of the case. Again, the lack of continuity by judges in given cases and the little court hearing time available are additional problems. Overall I don’t think it would harm the entire family to understand and accept discipline and the rule of law, and if not, for there to be a change of residence from one parent to another.

Currently intractable contact cases are incredibly frustrating for family solicitors, who may be landed with the most difficult of clients to represent as well. This client may on the surface present as a “victim” who is simply acting in the best interests of the child, but underneath there is every chance the client is exacting a deadly control over the entire family and may be taking revenge for the original family unit falling apart. It takes a skilled eye indeed to spot this type of client and understand the real agenda. Most lawyers take their clients entirely at face value and accept their instructions.

Such a client is unlikely to listen to pragmatic advice and is actually content to litigate, bemoaning the “system” in which the child is now caught up, despite it not being the real cause of the problems. At present the system is so children-focused that a parent can easily and safely play games through their child, only indirectly attracting attention. This regime allows the parent to get away with it and prolongs the dispute even further.

All the available solutions, such as one hour per week supervised meetings by the other parent (who is often stacked up with blame by the “victim” parent) in unfamiliar contact centres, are artificial and ultimately useless. They help no-one. Neither the parent desperate to see and establish a relationship with a child in a familiar setting, nor the child who cannot possibly have the feeling of normality that is vital to flourish. In such circumstances what is required, both by selfish parents and bewildered children who find themselves expressing different opinions to their parents and the judge, is discipline.

It is time to bring the parents out of the shadows, imbue them with a sense of discipline, treat them firmly and fairly, and renew in them a sense of respect for the authority of the court and for their family.

Author: Marilyn Stowe

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

Comments(4)

  1. JamesB says:

    A good post. Full of worthy ideals.

    From being on the wrong side of authority’s broad brush approach I do think you can’t make it work without changing the system also.

    By broad brush, I mean, the CSA law on percentage of income to children.

    I also mean the institutionalised purgery which usually coincides with any divorce on the divorce and ancillary proceedings. Example, swearing documents which are not true. Well dodgy unreasonable behaviour petitions. Dodgy ouster and non molestation orders.

    Trials without Jurys. Detention without Trial. Belmarsh. Guantanamo. The missing video tapes from the tube station for John Charles De Menezes. The Stephen Lawrence investigation. The way the rifles were destroyed after bloody Sunday. The Guildford Six.

    Personally, I gave benefit of the doubt and found the court would not enforce contact orders. Also when I complained about a Judges conduct, similar to your post above, ‘bullying by an unsophisticated judge’, the recording of the hearing was again mysteriously closed.

    The way the law society had to be spoon fed my complaint, via strict categoriazation which was inappropriate over a simple matter over many months before they found in my favour.

    The way CAFCASS didn’t have a clue what they were doing. The way the police will exclude men from homes without evidence as positive intervention policy and new law.

    I do agree with the three strikes and your out for a try at enforcing contact policy. But when it comes to family court, no thank you, avoid at all costs. Is a discredited institution.

  2. JamesB says:

    The recording was mysteriously lost I meant above.

  3. JamesB says:

    And Iraq, and the Bankers, and so on, rant not over yet. Establishment, as the Norweigan commentator said, you guys sure took one hell of a beating.

  4. JamesB says:

    And the declining social mobility and effect of the welfare state and single and teenage Mums. Lack of decent education for all. Immigration problems. Lack of accountability of the EU, etc. A lot of it from the

    Law of unintended consequences

    Of Judges and Lawyers actions and inactions. Yes, I think people have lost respect for them, they were supposed to be higher and better than us and we got all this recently and it has undermined them, a lot.

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