The hard job of a family judge by John Bolch

Family|Family Law|March 3rd 2014

In recent years the family courts have been subjected to an almost continuous stream of criticism, in particular from the media and fathers’ rights groups. Some of the criticism is fair, most of it is not. However, one thing must always be borne in mind before criticising the decisions of family judges: they do, of course, have to deal with some of the most difficult issues imaginable.

Take, for example, the recent case of Y (A Child: Private Law: Fact Finding).

The case concerned a child, Y, now one year and eight months old. Her parents had had a “tempestuous” relationship, involving violence and drug and alcohol abuse.  They separated when Y was only four months old. Her father then applied for a contact order.

The case came before Mrs Justice Pauffley in the High Court for a ‘fact finding’ hearing, in which she would make decisions regarding various matters in dispute between the parties, before the case proceeded. Such hearings are comparatively unusual in private law children matters, but Mrs Justice Pauffley said that it was “altogether necessary in the quite extraordinary circumstances of this case”.

Those circumstances included an allegation by the mother that the father had sexually abused Y (repeated by the mother to about 100 individuals on Facebook); a test on a sample of Y’s hair proving positive for cannabis; and various injuries found on the child. Mrs Justice Pauffley had to investigate these matters and, if possible, determine the truth of the mother’s allegation of abuse, and also look at how Y had ingested cannabis and how her injuries had been caused.

Having considered the mother’s allegation that the father had sexually abused Y, Mrs Justice Pauffley found that there was no evidence to support the allegation. Further, she was convinced that the father had done nothing of a sexual kind and had to be exonerated. The mother, she said, had seemingly invented the allegation “for her own malicious purposes”.

As to Y ingesting cannabis, Mrs Justice Pauffley was not able to make any findings as to how and to what level Y had been exposed to the drug. She did, however, record that the mother had a long history of drug taking. Further, she was highly critical of the mother for shaving Y’s head the day after she learned that Y had tested positive for cannabis.

Lastly, Y had recently suffered various injuries: a swollen eye, burns on one hand and bruises on her face, all within an 18 day period when Y was in her mother’s care. Mrs Justice Pauffley found them to be unexplained, but did comment “that Y was quite extraordinarily unlucky to suffer three within so short a timeframe”.

Mrs Justice Pauffley concluded with some comments about the father’s contact with Y. She said:

“I have no doubt at all that, left to her own devices, the mother would be preventing Y from having a relationship of any kind with her father. Her feelings of hostility towards him and what she believes he has done are extraordinarily intense. There is nothing seemingly about which she feels more passionately.

“Seldom do I see such strength of feeling even in the most bitter of private law disputes.”

So, next time you pick up your pen or reach for your keyboard to criticise a family judge, stop and consider just how hard a job they have to do.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Paul says:

    I can’t see what is so difficult, faced with telling evidence, in having to call a delinquent delinquent. Or is it that courts have hitherto opted for Easy Street and habitually shied away from the problem of calling out delinquent mothers?

  2. Louie says:

    I have to agree with the commenter. Mother’s have historically put up false allegations of abuse and domestic violence to get an edge in family court. Was this case hard because they had to find ways to not punish the mother for lying? Or, was it hard because they bias women so greatly that giving a child up to a capable father is “unconscionable”?

  3. Luke says:

    Having looked at the case I have to agree with Louie, fathers basically don’t get Residency but any father that did would have lost it if they had acted in the way that the mother did here – it would be pretty much a slam-dunk if the genders had been reversed.

  4. Donna says:

    Um, that case is only difficult to decide if you have a pro mommy bias that you’re trying to apply to the facts…. I could certainly see how it would be difficult to do the usual, give mom custody, when it’s proven she’s abusive, a drug user and a liar. Hmm, such hard choices….

  5. Nick Langford says:

    As others have said, there is nothing difficult about this case at all: it is an absolute no-brainer. It has only been made difficult by the succession of judges who have failed to handle it properly, presumably because it is so hard for them to overcome their ideological belief in sole maternal custody.

  6. Stitchedup says:

    Donna, Nick, Louie, Luke, Paul,

    You are all deluded, there is no mommy gets custody feminist bias in the family courts. I know this because John says so. Also Louie, women absolutely do not make false allegations of DV to get the upper hand in court. Again I know this because John says so and we have a report that proves beyond any doubt that at least 33% of women suffer serious domestic violence!!!

    Do we have a tongue-in-cheek smiley I can add???

  7. JamesB says:

    After being in front of them so many times, they do an impossible job, very badly.

    Having had serious discussions with them in and out of court, when pressed they blame the solicitors and the politicians as it is they who bring the cases to courts. Apparently they are just the messenger. And if you believe that, bend over, and I will tell you another likely story.

  8. JamesB says:

    They are overpaid, a disgrace, and biased in the females favour. Also anti male and children.

    Only credit I give them is they allow decent people to adopt children when uncontested (as I have seen in court) but that is very little credit at all.

  9. JamesB says:

    I meant above anti male and anti children although anti male with children is also appropriate.

  10. Anonymous says:

    There is nothing difficult about private cases, if you pay attention to the welfare principle rather than try to satisfy state directives. If we say there is something difficult about it, we are just being a weasel and trying to apologise for routine bias.

    All of the criticism is fair. There is no doubt about that.

  11. Paul says:

    It’s a hard job deciding on competing time arrangements between estranged parents when no normative evidence is provided to guide you beyond a poorly researched Cafcass report. That the judiciary have ignored a burgeoning body of proper, peer-reviewed child development research speaks much for their own stupidity and unwillingness to utilise serious informed opinion. Much of this research has been around for years (real research that is, not the bogus Nuffield stuff which is highly political) and ought to have been used as a rational basis for settling parental disputes long ago.

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