“Of all the reforms put forward by the Family Justice Review … the least successful has been that relating to private law disputes concerning children.”
So said Lord Justice McFarlane in the course of a speech to the NAGALRO Annual Conference the other day. In other words, the review has not had much impact upon private law children disputes, which remain as difficult and as damaging as ever (although, as Lord Justice McFarlane explained, part of the reason for the failure was the removal of legal aid, which scuppered the big idea that more cases would be resolved by mediation). The most common issue between parents is of course contact, and Lord Justice McFarlane sets out two ‘thoughts’ which may make a difference to dealing with these disputes.
The first ‘thought’ is that courts should recognise and address potentially intractable cases at a very early stage, “to avoid the disaster of a contact case becoming wholly intractable with the result that a child is cut off from contact with the absent parent and, often, grandparents and other important family members.” Now, you may think that this is nothing new – surely, the courts should do this already? Well, yes they should, but they don’t, at least not always. To illustrate this, Lord Justice McFarlane cited four recent cases where the court put off early intervention, including the awful case J (DV Facts), in which the court’s failure to investigate allegations against the father meant that by the time the problem had been identified by the Court of Appeal it was simply too late for the case to be remitted back for a fact-finding hearing, as by then the middle child was too old for an order to be made, and the youngest child’s views were too entrenched for any attempt at contact to take place.
Clearly, the courts need to ‘grab the bull by the horns’ and investigate the facts in potentially intractable contact disputes, as early as possible. As Lord Justice McFarlane explained, this does not mean that in every case the court must look to see if it is possible to identify a formal label of “Parental Alienation Syndrome”. As he quite rightly said:
“In such cases, that there has been ‘alienation’, with a small ‘A’, will normally be a given; it is that factor which will often render the case ‘intractable’.”
He went on:
“The existence of alienation of itself can only be damaging to a child. It must be grim to grow up having a profoundly negative view of one of your parents. In some cases such a negative view may be justified by the actions of that parent, but often life is not so black and white and a more nuanced, ordinary and tolerable view of both parents will have been justified had an imbalanced status quo as to contact not become established.”
Hopefully, these words will encourage more courts to investigate allegations at an early date.
The other ‘thought’ may perhaps be considered by some to be slightly more ‘radical’ although it, too, is nothing new. It is that the judiciary should indicate to parents at the outset of cases what ‘what normal looks like’ in a contact case. This (if I understand Lord Justice McFarlane correctly) is not just some bland statement that would apply to all cases, but an indication of what the court might expect the arrangements should be in a case like the one before it (assuming there are no unresolved allegations of domestic abuse or other safeguarding concerns). Obviously, judges have generally shied away from such statements, for fear of being seen to have pre-judged the case. However, Lord Justice McFarlane does not see this as an issue:
“I understand that position, but, in my view, the publication of a statement of general norms by the judges represents a different level of judicial activity than the determination of the outcome of any particular case that may go on to be contested before the court where, of course, there will be no rubber-stamp application of a template norm, and a bespoke outcome for the individual child must be determined.”
Lord Justice McFarlane considers that such a ‘statement of norms’ would be beneficial, and clearly if parents are to hear this from the judge dealing with their case then it might well cause them to re-think their expectations, and thereby make it more likely that the matter may be resolved by agreement.
Lord Justice McFarlane envisages that this approach may be linked with other steps (as has occurred in other jurisdictions), including:
- The early agreement to, or imposition of, a ‘standing temporary order’ based on the norms for the age of the child in order to maintain some contact in the interim stages;
- Parenting Education Classes (similar to the SPIPs that are currently available);
- A Parenting Conciliation Session (similar to the current First Hearing Dispute Resolution Appointment); and
- The making of a consent order.
As I said, these are interesting ideas, which deserve further consideration.
You can read the full speech here.