There are many who complain about the family justice system saying, for example, that it is biased or even corrupt (it is, of course, neither). Some even call for it to be replaced completely, although listening to them I’ve been entirely sure what they would replace it with.
But what if there were no system at all?
The spectre of just that, at least for a large proportion of the population, raised its ugly head last week. It was reported that family lawyers have warned that separating parents are giving up on the courts as a result of the legal aid cuts last year, and may take the law into their own hands in trying to see their children. In other words, for many of those who can’t afford a lawyer it seems as if there is no legal system available to resolve disputes over arrangements for their children.
Let’s stop and look at just what such a scenario really means.
What it means is that unless those parents can agree arrangements for their children (and parents who agree obviously do not need the assistance of any system anyway) they have two choices: to give up, or to take the law into their own hands.
Giving up for the parent with whom the child does not reside can mean having less contact with that child than the parent should have, or even the parent losing contact with the child entirely. Obviously, losing contact with their child is a huge loss for the parent, but it is also an enormous loss for the child. I think that latter point can get lost in the whole argument over legal aid – yes, the government has taken away legal aid for the parent, but it is not just that parent who suffers. The child can suffer as well.
What about the parent with whom the child resides? What happens if they give up? Well, there are various scenarios here, but the one that springs to mind is that they end up acquiescing to the demands of the other parent, which can have all sorts of adverse effects, both upon them and the children.
Then there is the other option: taking the law into your own hands.
For the parent with whom the child does not reside this can mean making threats against the other parent – for example, if the other parent does not agree to their demands regarding the children then something bad will happen to the other parent. That bad thing may be the withdrawal of financial support, or it may even be a threat of violence. And if that doesn’t work, why not go the whole hog and forcibly remove the child from the other parent? The possible effect of such a thing upon the child doesn’t bear thinking about.
As for the parent with whom the child resides, taking the law into their own hands could mean, for example, moving away with the child and not informing the other parent. At best, this would cause an interruption in the child’s relationship with the other parent. At worst, it could end that relationship completely.
If all or part of the above seems somewhat dramatic, remember that desperate people do desperate things. Removing legal aid can seem like removing all hope for those people, and the consequences can go far beyond simply saving public money.
Anyone, irrespective of their means, may have need for an enforceable system of resolving disputes over arrangements for their children. The law must therefore be for all. The consequences of not having the law, or at least some other enforceable system, would be disastrous, not just for the parents but more importantly for the children involved too.
I find this article very worrying.
You state that there is no bias or corruption in the Family Justice system. Let me quote to you two comments made to me by Senior Family Court judges. The first stated ‘FNF had the temerity to say that Family Court judges were prejudiced against fathers – and of course they were right!’ The second judge said to me ‘People turn up to my Court ever day of the week and tell me a pack of lies – but what can I do about it?’
You give examples of what might happen if there is no agreement over child arrangements by stating that either one parent gives up or the other ‘takes the law into their own hands.’ This is ludicrous. Parents with PR are acting lawfully when they have contact with their children. Any parent who wishes to eliminate, reduce or interfere with contact is the one who is ‘taking the law into their own hands’. THEY are the ones who need an Order from the Family Court because they are the ones seeing to reduce the child’s right to contact with BOTH parents as defined by Article 9 of the UNCRC.
So, what’s the solution to intractable contact disputes? Firstly – making it clear that the child’s right to contact is important and backing that up. Secondly by re-affirming the correct legal position – ie you need an Order to prevent or interfere with contact rather than ‘taking the law into your hands’ and stopping contact. But what about domestic abuse / child abuse or any other legitimate reason to prevent contact. I would suggest that a straightforward system would be that no parent be excluded from direct contact unless a threshold for a Public Law order had been met.
I was reminded over the weekend of a statement made in 2004 by Theresa May MP who was then the Shadow Minister for the Family
‘“Too many families have been torn apart by divorce and separation. Not just because the adults’ relationship has ended, although that is painful enough. But because the bond between parent and child, or grandparent and grandchild has been broken.
Our Country deserves a better system of family justice: one that is open, fair and accountable; that protects children and respects parents; but above all, that recognises that the best parent is both parents.” You can read the rest of it here – mensaid.com/fl
The key point that Theresa May made was that parents and children need predictability, clarity and speed. I’ve noticed that lawyers have been very quick to comment about the ‘delays’ caused by Litigants in Person in the Family Court – but very few have any answer to why it used to take years to reach an often hopelessly unenforceable ‘judgement’ in the Family Courts when we had Legal Aid!!
Another article full of absolute drivel.
The arrogance and ignorance astounds me, and all from people in the profession.
Dear John
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How do you explain that Danish fathers are awarded residency in 35-40% of all cases which come before the Danish civil courts? This contrasts with something like 5% in this jurisdiction?
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This figure comes from a regular survey of actual judgements (across all civil matters) which is summarised in a report from the Danish Social Research Institute. The link below will take you to the download page for this report (which is free):
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http://www.sfi.dk/rapportoplysninger-4681.aspx?Action=1&NewsId=3024
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While the report is in Danish,with the help of Google translate you should be able to make sense of the relevant table, which is Table 5.9 on page 124.
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Given your view that it is self-evident that English exhibit no gender bias, I would greatly appreciate your explanation of the stark differences between the outcomes for fathers in English and Danish courts, respectively.
Thanks for flagging up this research Nordic. I wasn’t aware of this. A combination of this post and the comments has decided me to recommend that our charity finally takes the plunge + advises that the parents + grandparents we support should turn their backs on the Family Court. With no Order in place most of our service users have more legal ‘right’ to see their children. The potential gains of using a system that takes months or years to produce an Order and even when it does fails to enforce it means that parents are often marginalised from their children and a new ‘status quo’ created that effectively excludes them.
Paul and James, well said.
History will judge the profession. Those who endorse it at the expense of fairness will have to hang their heads in shame. They are anti-progress, and no better than militias that commit war crimes and excuse themselves by saying they are just doing their job.
What John’s half-hearted and completely disingenuous thought-experiment actually reveals is that if there were no law, it would not make a single difference for fathers (and some mothers who are likewise violently lableled non-resident parents) who are not currently protected by what he calls ‘the law’.