There is a certain snobbishness amongst some quarters of the legal profession when it comes to family law. There are some lawyers who consider that family law is ‘easy’, that there really isn’t much ‘real’ law involved in it, and that it mostly just boils down to common sense. Well, it might be the case that family law is less complicated than other areas of law (although it does have its moments), and I will certainly agree that plenty of common sense is required, but easy it isn’t.
By way of example, I want to take a brief look at some of the family law cases reported in just the last couple of weeks.
I shall begin with a child care case, Re S (a child with disabilities). Now, in most care cases the harm that the child has suffered has been caused intentionally by one or both of the child’s parents, or by someone else with whom the child has been living. In Re S it was found that the parents had caused the child significant harm, but that neither of them ever intended to do so. The child was a sixteen year old boy who was born with profound disabilities, putting huge demands on his parents. He was taken into foster care and the question was whether he should remain there. In her judgment Her Honour Judge Roberts said that she felt sympathy for two loving parents who wanted their child home. However, she found that the parents were not able to meet the child’s complex needs, and she therefore made a care order, with the plan for the child to remain with the foster carers.
Staying with public law matters, a rather more ‘conventional’ child care case was Lancashire County Council v A (Burned Child). I say that this was more ‘conventional’, in the sense that it was, sadly, more indicative of the type of factual matrix with which child care cases are usually concerned. It is no less traumatic for that, despite the fact that the application for care and placement orders was not opposed. As the title to the case indicates, it concerned a child who, aged about two, suffered burns and extensive other injuries. The court found that these injuries were inflicted deliberately by the mother. Accordingly, a care order was made and the child was placed for adoption.
Next, a private law child case. In Re E-R (A Child) the court had to grapple with the distressing issue of with whom a child should live after her mother, who was terminally ill with cancer, died. The mother and child were living with friends and made it clear that she wanted them to continue to look after the child. Proceeding under the erroneous belief that there was a presumption in favour of a natural parent, the court initially made a child arrangements order in favour of the father, despite the fact that he had had little to do with the child for some time. The friends appealed against the order, and their appeal was allowed. The matter will now be re-heard.
Moving on, Newcastle City Council v PV & Another was a Court of Protection case concerning a Criminal Injuries Compensation Authority award to a person who had suffered a brain injury. The complication here, here, however, was that the injury may have been caused by a family member, although none of the three people present when the injury occurred has been charged with causing it. The court therefore had to deal with the issue of ensuring that any possible assailant would not benefit from the compensation award. As Senior Judge Lush said, these cases arise almost exclusively in the context of domestic violence, where the assailant is a family member.
Lastly, the difficulties that family courts face are not only caused by the facts of the cases before them. They can also be caused by the behaviour of the parties themselves, a problem that has increased considerably since the abolition of legal aid for most private law family matters. I am referring here to the case of K v K, in which the father made multiple applications to the court, attempting to re-open matters with which the court had already dealt. The case has already been discussed here in a post by Marilyn Stowe, and I can do no better than to repeat her title to the post: “When litigants in person are a nuisance”. With all due respect to (for example) commercial lawyers, they do not have to contend with such litigants.
So, if you should ever hear a lawyer say that family law is easy, just smile back at them knowingly, while you recall some of the extremely difficult cases that family lawyers have to deal with on a daily basis.
Photo by joepopp via Flickr