It is, I think, a common perception that when parents cannot agree over arrangements for their child then the fault always lies with one of the parents, who is being unreasonable, putting their own interests above those of the child. (Or is it with the court? More of that in a moment). Obviously, this is how each of the parents perceive things themselves, but I suspect that many ‘outsiders’ who have not been involved in the family justice system also see things this way. However, sometimes the fault lies not with just one of the parents, but with both of them.
This post is something of a first for me. Instead of commenting upon a judgment or a news item, I will be commenting upon another blog post. The post appears on The Transparency Project, and refers to the judgment in the case T v S (Wardship), which was handed down by Mr Justice Hedley in 2011, but which has only just appeared on Bailii.
T v S concerned a dispute between the parents over the arrangements for their four year old son. As Hedley J explained, the parents were “in a deeply conflicted relationship”, and had been since soon after their son was born. I don’t need to go into the details of the case here, save to say that Hedley J clearly found both of the parents to be acting against the best interests of their child. The mother, he said, continued to make allegations which the court found unsubstantiated, and the father had “no chink of understanding about why it all went wrong in the first place so far as his behaviour was concerned”. Accordingly, and remarkably, Hedley J decided that he would treat the parents as having forfeited their parental responsibility to the court.
So to the post. It is not long, but it makes several excellent and vitally important points that are well worth repeating.
The first point relates to what the parents were fighting over. Both of them were seeking a sole residence order. A residence order was the prize. A residence order, in fact, had “assumed titanic status in the minds of the parties”, as Hedley J said. He decided that the granting of a sole residence order to either or even both of the parents was unlikely to be helpful to the boy, as the behaviour of the parents required the court to retain control. Accordingly, he took the unusual step of ordering that the child should remain a ward of court, with the court retaining ultimate control over decisions relating to him.
The point that I want to repeat, however, is what the post says next. The writer explains that the Children and Families Act 2014 of course sought to take the heat out of the ‘winners’ and ‘losers’ divide which some feared was promoted by making either ‘residence’ or ‘contact’ orders, by replacing those terms with the new term ‘child arrangements order’. However, the writer (a barrister) says that having now experienced since 2014 the operation of the replacement term, “I can confidently assert that the underlying tensions for parents arguing over where their child should spend time has been completely untouched by this change in nomenclature.” This is very interesting. I have not been in practice since 2009 so I have not witnessed it first hand, but I have always been sceptical as to the benefits of such changes in terminology. If parents are going to fight, they are going to fight whatever the name given to what they are fighting over.
The second point relates to the abolition of legal aid in 2013, after this case was heard. The parents were both represented, but obviously they might well not be in such a case now. What would happen now if they were not represented? Would the court continue to indulge in an ongoing oversight of the case, with the parents continuing to fight in court until their children are too old to be subject to any Children Act orders? Or will we get to a stage where the courts are so worried about the child suffering significant harm that the only route is into care proceedings? These are important questions. As the post writer said, the abolition of legal aid may have had unintended consequences.
As to the final point, I cannot state it more clearly than the post writer. It relates to a phenomenon that I have often spoken about here, and that can be seen by reading the comments on virtually any post here. The writer says:
“…the frequent need to categorise disputes about children in the family justice system as arising from the alleged systemic bias of the courts for/against ‘violent fathers’ or ‘manipulative mothers’ is a simplification which is often both untrue and unfair. Time expended arguing on which gender the court dislikes/promotes the most is time taken from proper, early analysis of the real issues before the court.”
“It must be very rare to find a case where one parent is 100% villain, the other 100% victim. I have never experienced that in nearly 20 years. Life is usually much more messy and complicated. All relationships are a dynamic between two or more people and everyone within that dynamic has an opportunity of influence. To expect – as some seem to do – the family justice system to be able to untangle all of this, whilst at the same time asserting that courts are ‘always’ biased in favour of men or ‘always’ listen to the mothers, can be an entertaining diversion on social media but is not any kind of reflection of reality.”
Very well said. I spent about 25 years practising family law. I also don’t recall many cases in which one parent was entirely at fault, and I certainly recall quite a few in which both parents were equally to blame. As I have said here many times previously, the search for answers to an intractable children dispute should begin with the parties looking at themselves, rather than expecting the court to sort things out and then accusing it of bias if they are unhappy with the outcome.