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Interesting ideas on contact from Lord Justice McFarlane

“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.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Mr T says:

    Clearly, the courts need to ‘grab the bull by the horns’ and investigate the facts in potentially intractable contact disputes.

    Fallen at the first hurdle. Family court “facts” are more often than not hearsay, rumours even made up stories from mother \ social workers \ CAFCASS and anyone else that cares to comment.

    What they need to do in intractable cases is use the criminal threshold of facts because more often than not there are just empty words (delusions mostly) and no hard facts to back it up!

    The family courts (judiciary, CAFCASS, social workers etc) also need to stop being biased towards mothers! It beggars belief some of these cases have ended up with judgements that are just completely opposite of the facts!

    Time to be equal based on facts and not superficial. Magistrates and some judges need training on what constitutes a fact a verbal opinion is not a fact!

    They need to spend time getting into the case by reading statements and absorbing things instead of just getting them out of the court as fast as possible!

    Most of all they need to realise – the child’s right to a family life – with BOTH parents. Bias in court translates to bias in time spent with the parents – this needs to change. Also, resentment in terms of a lifetime to pay support regardless of circumstances means single mothers automatically alienate or go out of their way to get a child then be paid for the privilege.

    We need laws governing paternity fraud to cover men’s backs.

    If nothing is done all these issues are going to get exponentially worse in time

    I’ve missed one point but I’m old 🙂

  2. Mr T says:

    Ah yes, I remembered – fathers spending more time with kids – what a joke this should be automatic not whether kids wanted to or not!

    50/50 shared parenting is the way forward.

    Make family law public.

  3. RW says:

    Some good ideas, in a finance hearing, the Judge gives an idea of the outcome should there be a final hearing, so equally they should be able to give an idea of the contact outcome. It may shorten the amount of time conflict is ongoing around the child(ren), which can only be a good thing.

  4. Spike Robinson says:

    A misdiagnosis re mediation. The end of legal aid should have driven more people to mediation. But mediation was stillborn. Or rather, it was killed at birth by the Law Society’s insistence that mediators not be permitted to give legal advice. This meant that even mediators who were themselves experienced family counsel were prohibited from advising mediation parties of the likely results if the parties were to proceed to court. By acceeding to the closed shop demands of the Law Society, at a stroke the mediation process was rendered the pointless, mandatory rubber stamp exercise it has been from the outset. People who are reasonable enough to come to agreement during one sit down with a mediator, don’t need professional mediation. Everyone else is forced to pay for a pointless charade. Millions of pounds in legal fees and court operations costs are wasted every month as a result of this sabotage of the mediation provisions. But the Law Society earned its keep. No doubt the fees that have flowed to their paying members as a result of this sabotage easily exceed a hundred million pounds by now.

  5. Spike Robinson says:

    The Lord Justice is correct though that the earliest possible statement of norms would be of great value in minimising litigation. It’s just a shame that capability was conscious and deliberately removed form the mediation provision.

  6. spinner says:

    Until the family court is willing to *enforce* an order against a mother this is just a whole lot of nothing.

  7. Helen Dudden says:

    No parent, father of mother should be allowed to control child/children by alienating. If it’s acceptable and legal it should be fairly agreed.
    Children gain from family interaction and communication.

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