I’ve probably said here most of what I am about to say previously. I am not, however, going to check that or make any apology, as clearly, and sadly, these things need to be repeated.
Everybody loves a conspiracy theory, although not everyone actually believes one. Who killed JFK, whether the moon landings were faked and whether Princess Diana was murdered are all interesting stories, but for the most part they are pretty harmless, at least for those who believe in them.
There are, however, two linked conspiracy theories surrounding our family justice system, and these are certainly not harmless for their adherents. The theories have been around for years, and I was reminded over the weekend that they are very much alive and well, as I watched a discussion unfold on Twitter between lawyers and theorists.
In their most pernicious form the theories suggest that everyone concerned with the family justice system, and that includes judges, lawyers, social workers and Cafcass officers, is involved in them. One theory suggests that all of these people are actively working against the interests of fathers, and the other theory suggests that they are concerned with an evil plot to remove children from families. I say the two theories are linked because many of those who believe in one theory also believe in the other.
The anti-father theorists believe that the family justice system is biased against fathers, so that mothers are preferred in any dispute over with whom children of separated parents should reside, and fathers are often given limited contact with their children, or are denied contact entirely. The courts are not, of course, biased against fathers, as I have explained here previously.
The child-snatcher theorists are concerned with public law children cases. They believe that, for some reason I have never quite fathomed, the family justice system seeks to forcibly remove children from families for no, or no good, reason.
Now, before I go any further I will say that there are of course cases where fathers are wrongly denied contact with their children, and where children are wrongly removed from their families. Of course there are. The system makes mistakes – it is not perfect, and no one within the system is saying that it is. However, they are also not involved in some concerted effort to achieve a particular end.
Why does all of this matter? Surely, people who believe in such theories are misguided, but essentially harmless? Well, no. The problem is that a whole industry has evolved to advise the believers upon how they should conduct their cases. And most of that advice is bad. The industry, of course, has received a considerable boost by the abolition of legal aid for most private law family matters, as litigants are forced to look elsewhere than lawyers for their advice.
In the private law field the advice will begin by the litigant being told that the courts are biased, putting things on the wrong foot from the start. Litigants will also be advised not to believe anything they may hear from a lawyer, as that lawyer is, of course, biased against them. And things go downhill from there, with allegations of bias against judges (for some reason judges tend to take a dim view of this) and refusal to accept the will of the court. All of which, of course, does extreme damage to the litigant’s case.
In the public law field the advice can be even more extreme. For example, advising a family to flee the country, so as to avoid the system entirely. What an irresponsible thing to say! Apart from the damage this can do to the parents’ case, have the advisors ever stopped to think that the children may be suffering harm within the family, and that they could therefore be condemning the children to further harm?
Parents involved in care proceedings concerning their children are also sometimes advised against instructing lawyers, or certain lawyers, as they may also be biased against them. This at the very time when the parents are most in need of the best expert legal help available. The latest wrinkle is that it has been suggested that barristers who have previously acted for the local authority should not be instructed for this reason. This is utter nonsense, and shows a complete lack of understanding of how lawyers work.
In short, if you are involved in family proceedings, whether private or public law, you will be doing yourself, your case, and most importantly your children, an extreme disservice if you fall for one of these conspiracy theories.