The road to war

Family Law | 30 Jul 2014 10

A couple of weeks ago I wrote here about cases in which families tear themselves apart by continuous litigation, and how this can be particularly tragic when children are involved. Unfortunately, it hasn’t taken long for another example of this awful phenomenon to be reported.

In AL v DA the parents have managed to litigate substantially in both England and France. I do not propose here to discuss the legalities of the case itself (the judgment, handed down by Mr Justice Holman on the 9th of July last, just relates to a directions hearing, not a final hearing), but rather the destructive behaviour of the parents.

The case concerned a child, who is now aged about eleven and a half. His parents never married. His mother is French and lives in Paris, and his father is English and lives in southern England. Initially he lived with his mother, but we are told that as a result of legal proceedings in France “many years ago” he moved to live with his father.

There then followed “further considerable litigation” in England and in 2011, after a six day hearing, it was ordered by Mr Justice McFarlane (as he then was) that the boy should continue to reside with his father in England, but spend extensive periods of time with his mother. Mr Justice Holman says of this:

“It shines out from the judgment of McFarlane J that he felt that the continuing conflict between the parents had been, and was potentially, very damaging to their son.”

“It might have been hoped”, continues Mr Justice Holman, “that, following that judgment and apparently final decision, the conflict would have died down, but here we are, almost exactly three years on, and the mother has now issued a fresh application.”

The mother’s application, as one might have guessed, is for an order that the son now moves to live with her in France. She maintains that the son badly wishes to live with her and dislikes living with his father.

The father, it seems, considers that the son is only telling his mother what he thinks she wants to hear. The father believes that what is going on in the boy’s life is causing him psychological harm. Tellingly, in the course of his judgment Mr Justice Holman says of the son:

“The tragedy of this case is that he was born an innocent child; and if and in so far as he may now be suffering emotional damage and harm, that is entirely referable to the long history of conflict between his parents.”

Later in the judgment Mr Justice Holman considers the possibility of the parents resolving matters via mediation. He says:

“What, surely, shines out again and again from this dreadful story and this judgment is the intensity of the conflict between these parents and the hugely damaging effect that further litigation is likely to have on their son now that he is aged 11 and will be approaching 12 by the time of final hearing. He will have intense awareness of this conflict.”

He urges the parents to consider mediation, despite it failing previously, and concludes with the following:

“I make all the directions that I do today, which are directed inevitably under our system to a final contested hearing, which at the moment has all the prospects of being a terrible one. However, my last words, although I have said this many times during the course of today, is to urge upon these parents that, before this gets out of control yet again; before they perpetuate emotional damage to their son; and before they spend enormous amounts of money which one or both of them may not really have, they bend every endeavour to see if they cannot find some way, with skilled professional help, to mediate and resolve these issues rather than head precipitately down the road to war.”

I have read this sort of judicial exhortation many times, but make no apology for mentioning it here, so soon after my previous post. Parents involved in protracted disputes over arrangements for their children need to understand the damage that they are doing to the most precious people in their lives. The more of them that read Mr Justice Holman’s wise words, the better the chances that they will realise the error of their ways.

Photo by Mark Hamilton via Flickr

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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    1. Helen Gers says:

      This is an interesting case. I’m in this position, I live in The UK and my 9 year old son in South Africa with his 63 year old father. I see him every 9 weeks. I never discuss his father I understand the consequences. Let’s be honest here though John, the judge is right, the child’s emotional health is paramount and parents simply must take a step back and look at their childs needs rather than their own grief. However (there has to be a however) in many cases a woman has to return from a foreign country as after divorce and no support many times the partner with money can almost hold the parent (usually mother) to ransom over finances. I know this might not be the case here…..but a pervasive pattern is growing in these cases. This was my position and it renders the parent in a foreign country helpless. I think it must be considered the psychological impact on the child when it sees one parent as completely powerless, choice less and completely distraught over such a move. These cases seem impossible…..I always read your articles. I don’t know a solution. It’s the same hampster wheel over and over again.

    2. JamesB says:

      For what it’s worth I think the parents above should be ordered to attend parenting classes to stop them from upsetting their child again, I also think the court should appoint a guardian in this case to stop the child being damaged. With regards to money, well, if society creates cases and messes like these then it should have the funds to sort them out, or else not create them in the first place.

      With regards to mediation, well, it is nine years since me and my ex split up and I think we could only deal with anything through mediation now, it is hard where party or parties feel aggrieved, especially where large amounts or child maintenance are in force where you have to pay to have your child or children removed against your wishes.

    3. JamesB says:

      Last sentence should read : especially where large amounts of child maintenance are in force where you have to pay to have your child or children removed against your wishes.

      Judges retorting that contact and maintenance are two separate issues is glib and not in the real world and just makes them less influential in these cases where they should be able to help more, it is that ignoring of natural law in family law and other law that gives such (bad) law a bad reputation.

      This case another example of the law of unintended consequences and the bad consequences of the CSA.

      To be clear, I think if there were no maintenance payable from the mother or father here, then the matter would be resolved with child living in France or England, by agreement and seeing the other child by agreement. Instead the csa rules has made this case, along with many others a lot worse then it otherwise would have been and another reason to stop the csa and go back to how it was before please or to enable parents to be able to resolve matters between them, without government ‘help’ making the parents upset and resentful of each other.

    4. JamesB says:

      The road to war… Lack of fairness, where people feel courts and establishment aren’t fair to them.

    5. JamesB says:

      The road to war… Lack of fairness, where people feel courts and establishment aren’t fair to them or for them at all. Like with the CSA, but I am beginning to repeat myself again, so will leave it there.

    6. JamesB says:

      That Guardians are usually only appointed where the parents are wealthy is another failing of the court system, they could help a lot more children as children (speaking for myself 30 odd years ago also) can get caught in the middle and damaged with nowhere to go and no one to help them.

      I only know of one case where a Guardian for the children was appointed and it was where the parents were very wealthy. Where (as in most cases) they are not the parents and children have to make do (or not) with poorly or not working process and processes.

      • Carol Bird says:

        Guardians are employed in all Public Law cases for the child, we as a family had an appointed Guardian for our son/grandson who sat back while a Split Care Case went through the Family Courts knowingly by the Guardian in a False Name of our son/grandson, making all the court orders for evidence to prove our innocense not worth the paper they were written on.
        This Guardian received the copy of the court of appeal notification, that the split case was joined together in the FALSE name of child with no further appeal
        This Guardian sat back knowingly, that against this High Court Ruling the Social Services Legal went on to change the childs name back to birth certified name of child, split the case and go on to have my son/grandson adopted.
        This Guardian sleeps at night with the excuse SHE HAD NOTHING TO DO WITH THE ADOPTION CASE
        Be very careful in what you wish for

        • Carol Bird says:

          Further information not to trust the Guardian
          Our appointed Guardian had factual evidence that our son/grandson
          Had brain damage due to complicated birth
          Confirmed by brain scans a condition Cerebral Atrophy
          Threatened birth family and Carers not to mention this condition or outside Carers would be sought
          Forced family and Carers to search for outside help underhandedley from a Charity, Child Rescue Foundation now Cerebra, Brian damaged Children Charity still have correspondence, without their help, our son/grandson would have not been given the help,support, excercise, massage which helped and daily difference seen in his development, not one mention from her in this court case of Cerebral Atrophy, only by the Judge Cazalat that he did not want this condition covered up, when lightly mentioned throughout the split court proceedings by family, but the Guardian and the Social Service legal made sure it was.
          Not even the then local MP Mo Mowlem could enforce the Cerebral Atrophy to be looked into and accepted by Social Services in my son/grandsons case for his best interests after complaints of him turning up at 2nd parent meeting when he was placed in foster care with a big purple bruise on his forehead, they also refused to persue birth damage claim in childs best interests with outside solicitor, all this the Guardian knew about and should have made sure was acted upon

    7. JamesB says:

      That the courts don’t see contact and maintenance as linked, even when they plainly are is bad and brings those courts into disrepute.

    8. JamesB says:

      Relationship lessons at school would also help and are a good thing and might help reduce this sort of destructive arguing behaviour.

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