The Roman Emperor Tiberius may have said that power has no limits, but he clearly wasn’t referring to the family justice system. Judges may have been granted certain powers, but, as I explained here on Monday, those powers certainly have limits, in particular when it comes to dealing with unreasonable behaviour by parties to family proceedings.
In the post I gave as an example of such behaviour the situation whereby the parent with care of a child does everything in her (or his) power to alienate the other parent from the child. I used this as a particularly bad example of litigant behaviour, although the post was about other types of bad behaviour as well – behaviour which, whether by design or not, impedes or frustrates the other party.
Picking up on the parental alienation point, commenter ‘Paul’ raised a number of points in the comments section to the post, that I thought I would respond to in another post. Please note that this post is not intended to deal with the issue of parental alienation in any detail. Parental alienation is a huge and horrendous issue upon which an enormous amount has been written. Even if I was qualified to do so, I could not possibly do it justice in one post. Instead, I just thought it might be useful to make a few comments of my own upon the matters Paul has raised, partly to give my own view, and partly to put these important issues out for further discussion.
The first point I would like to make is that I had no intention in my earlier post to trivialise the issue of parental alienation, as I fear Paul may believe. However, there are various ‘shades’ of behaviour that these days fall under the banner of parental alienation, ranging from the very bad to the (apparently) quite trivial, and it is really the latter that I was referring to in particular in my post. Constant, niggling, doing-down of the other parent for example is, with the best will in the world, extremely difficult to deal with. What is the court to do? Even if it makes some sort of order restraining the parent with care, how does it police that order, without watching that parent 24 hours a day? Yes Paul, this kind of behaviour is sadly quite common, but that doesn’t make it any easier to deal with.
Up to a point Paul and I are both singing from the same hymn sheet, accepting that such behaviour is unacceptable. Where we differ is that Paul says that my response (and therefore that of the courts) is to shrug my shoulders and ‘carry on business as usual’, on the basis that we can’t do anything about the behaviour, so why bother? I am most certainly not saying that. I believe that once it has been ascertained that a parent is deliberately trying to alienate a child from the other parent the court should do everything it can to address and deal with that behaviour. Unfortunately (and this is my point – the root of the problem), dealing with that sort of behaviour is easier said than done. Firstly, it may already be too late – the alienation has happened, and there is nothing that can be done to reverse it. Secondly, if the behaviour is still continuing, how does the court find out about it? And thirdly, if the court does find out and the parent with care persists then the only sure way to stop the behaviour would be to remove the child from their care, but often this simply isn’t a practical possibility, or even if it is, it may still be considered to be contrary to the welfare of the child.
Paul says that the system cannot deal with alienation. I both agree and disagree. The system does attempt to deal with alienation (see for example this case back in March), and often it succeeds. On the other hand yes, there are sadly cases where all efforts to deal with it fail, because the child is so set against the alienated parent that it is simply impossible to reintroduce the parent into their life without causing the child serious emotional harm. But is there any other system that could guarantee success in all cases? I think not.
Which brings me to my last point. I believe Paul is suggesting at the end of his second comment that we should have a non-court based system to deal with family (or at least children) disputes. It is an idea that has been raised on many occasions over the years that I have been writing about family law, and it is easy to see its attraction. It doesn’t seem right that private family matters, in particular matters relating to children, are dealt with by courts of law. Surely, there must be an alternative? Well, there may be, but the problem is that sometimes parties have to be forced to do things they don’t want to do, and only courts (or court-like bodies) have the power under the law to force people to do those things. That is why we have a court-based family ‘justice’ system, and why other countries do too. By all means press for change and improvement, but any future system will have to address the issue of enforcement, and that will inevitably mean using the courts, or something very similar.
Photo by Croswald9 via Flickr under a Creative Commons licence.