Mr Justice Moylan, re-hearing the child contact case A (A Child), has apparently described it as the “longest dispute of its kind” he had encountered during his years as a judge and barrister. It began when the father issued his contact application in October 2001, when the child was two. The litigation between the parents has continued, almost without interruption, for the ensuing twelve years. Between 2006 and September 2013 there were no fewer than eighty-two court orders.
It is, indeed, difficult to imagine a children dispute lasting much longer – by the time the child is in his or her teens it becomes increasingly likely that whatever they want goes, with the court less and less able to impose any other solution. Indeed that, it seems, was the outcome here. Last September the Court of Appeal allowed the father’s appeal against an order that he have no direct contact and ordered that Mr Justice Moylan re-hear the case. However, Mr Justice Moylan, hearing that the child, now aged 14 and a half, did not wish to see her father, refused to order direct contact, finding that it would not be in her best interests to try and enforce it as she would simply not go.
Lord Justice McFarlane in the Court of Appeal said that the family justice system had failed the family and Lord Justice Aikens also said that the system had failed the child, whose childhood had “been irredeemably marred by years of litigation.” As a result of the system’s failure, he said, she had suffered the lack of a proper relationship with her father during her childhood years, despite the fact that her father had acted “irreproachably” throughout.
The system had indeed failed the family, and ordering a rehearing was of course akin to shutting the stable door after the horse had bolted – too late to put right the wrong. I’m sure the case will be seized upon by those wishing to criticise the system.
Unfortunately all family lawyers will have come across children disputes that take much longer to resolve than they should. However, avoiding wrong decisions in the processing of a dispute is not always an easy task. Yes, mistakes are made (as in all walks of life), but the vast majority of professionals involved in resolving these disputes do what they do with the very best of motives – i.e. the welfare of the children concerned – at heart.
Before a final decision is made the main problem is when cases are allowed to ‘drift’, rather than the judge ‘grasping the nettle’ and imposing a solution. However, the line between ‘grasping the nettle’ and having a heavy-handed attitude can be a very fine one – we are, after all, dealing with what can be very delicate situations, and sometimes a heavy-handed decision can be contrary to a child’s welfare.
We must also remember that hindsight is a wonderful thing. Decisions relating to children do not always appear black and white to those having to make them. What may later appear to be obviously the right path may not have been quite so clear at the time.
The other big problem area is the enforcement of decisions once they have been made. Surely, an outsider may think, the correct course of action must be simple to find? Well, not always so. The welfare of the child is still paramount – enforcing an order willy-nilly may once again be contrary to their welfare.
Then there is the point that Lord Justice Aikens made in A (A Child):
“Speaking as one who is not an insider to the Family Justice System, I suspect the root of the problem is that the system is overworked and short [of] resources with the result that there is insufficient opportunity for professionals and judges alike to stand back from time to time and take a fresh look at a case and reconsider it from basics.”
Judges, welfare officers and other involved in the family justice system have been overworked as long as I have been concerned with the system, and the situation is only getting worse, with fewer resources and, in particular, the problem of more litigants in person. It is far quicker to take the ‘easy’ course, rather than to grasp the nettle.
And then we must not forget the parents. It is all very well blaming the family justice system, but the problem stems from the inability of one or both of the parents to resolve whatever issues exist, in a reasonable and timely manner.
I realise that all of the above will seem like an excuse for the failures of the system. But I am not trying to excuse anyone. Rather, I am seeking a little understanding of the problems faced by those having to decide children disputes – a little balance to the argument. Only if we look at things with such an understanding are we likely to find the solutions to the problem of children disputes going wrong.
Photo by nojhan via Flickr