There is something particularly sad about seeing the same family law case crop up time after time in the law reports. You know that behind those reports lies a tragedy: a family torn apart and still writhing in the throes of its own destruction, rather than moving forward to a new future. Of course, the tragedy is all the greater when there are children involved.
One such case is Cambra v Jones, which involves a dispute between the parents as to whether their five children should reside with the father in Spain or with the mother in Wales. The case has been the subject of many court judgments, both in this country and in Spain. It first rose to national prominence back in 2012 when it was mentioned here in this post. Following another hearing in March this year when one of the children, Jessica, now aged 16, was made a party to the proceedings so that she could explain why she does not wish to return to Spain to live with her father.
The latest judgment in Cambra v Jones relates to a hearing on the 9th of July. I don’t propose to go into the detail of the judgment, but it concerned the father’s application for the mother to be committed to prison for contempt in breaching an order requiring her to return Jessica and her brother Tomas, now aged 14, to Spain.
The judgment was handed down by the President of the Family Division Sir James Munby, who has thus far given a total of four judgments in the case. He found that the mother was not in contempt, as it was impossible for her to compel the children to return to Spain against their wishes.
At the end of his judgment Sir James said a few words about the effect of these continuing proceedings upon the family. Firstly, he quoted from a judgment by Mrs Justice Theis in January 2013, in which she in turn quoted from a judgment by Mr Justice Hedley in October 2012. He had said:
“… the position of the parents is one of complete impossibility. I do not think they begin to even understand, if they care in the slightest, that they carry on their battle with a total disregard for the cost paid by their children for what they are doing. It is deeply saddening and deeply troubling that parents can be quite so unspeakably selfish as to conduct this kind of battle over years and years and stand by and watch their children pay the price of it. That is how they chose to parent and they must answer for it to their own children in the fullness of time.”
Sir James then went on to say:
“Listening to Jessica’s evidence was one of the saddest experiences of my time on the Bench. Her account of how and why her previously close relationship with her elder sister has changed was poignant. It is almost unbearable to think of these five siblings divided as they are, three living in Spain with their father, the other two with their mother in Wales, and all five having as little contact with each other as seems at present to be the case. Somehow there must be some healing within this fractured and bitterly divided family.
“Both parents bear a heavy responsibility, not so much to the courts as to their children. If they remain unable to change things for the better, the price will in due course be heavy, not just for the children they have damaged but also for them. That future does not bear thinking about.”
Why, then, do some couples insist upon repeatedly smashing their families apart on the anvil of contested court proceedings? Is it simply due to the personality of one or both of the parties, so sure of the ‘rightness’ of their case that they are not prepared to give ground? Or perhaps they are just unable to see the other party’s point of view.
Sometimes, of course, the proceedings are simply used as a vehicle to wreak vengeance upon a former partner for ending the relationship.
Or maybe the parties just find themselves trapped in a spiral of court proceedings with no clear way out. Obviously, the answer is usually to find some sort of middle ground where a settlement can be reached between them, but sometimes there doesn’t seem to be any middle ground – this can be especially so in cases such as Cambra v Jones which involve families separated by great distance and where it can appear that there can only be one ‘winner’.
The family justice system itself can also make things worse, rather than better. Its adversarial nature, for example, can add fuel to the fire of conflict, making settlement even more difficult to reach. Delays in the system can allow positions to entrench themselves, reducing the possibility of compromise.
Whatever the reason for it, one thing is certain: almost any solution is better than continuous litigation. Every reasonable effort should therefore be made to resolve family disputes by agreement, especially where children are involved, and any party who fails to make that effort does those children a great disservice.