Last week the soon-to-be President of the Family Division Lord Justice McFarlane gave a ‘keynote address’ to the Families Need Fathers Conference 2018. The address largely repeated what he said in his speech to the NAGALRO Annual Conference back in March. I wrote here about that speech then, so I won’t repeat what I said previously. Instead, I thought I would pick up on a couple of his ideas, and give a few thoughts on them.
The first idea may sound to some to be entirely obvious: where one or both of the parents involved in a dispute over arrangements for their children makes serious allegations against the other, then those allegations should be investigated by the court at the earliest possible stage, with the court making findings as to whether or not the allegations are true. Typical, and common, allegations that might fall into this category are that the other party has been ‘guilty’ of domestic abuse such that it should be taken into account in any future child arrangements, and that the other parent has, “either deliberately or inadvertently, turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship” (that being Lord Justice McFarlane’s ‘definition’ of what is commonly referred to as ‘parental alienation’).
This is surely a good idea. Getting such allegations dealt with as soon as possible must be a good thing. Not only will the court then be able to proceed in an informed way, the allegations should be put ‘out of the way’ (especially if they are found to be untrue), so that the parties can concentrate on what is really best for their children, and perhaps even find a way to agree matters.
However, I fear that it is one of those ideas that may be far easier to state than to put into practice. In ‘real’ cases, things get in the way. There are delays. For all sorts of reasons, in particular not having all of the necessary evidence available, the court may not be in a position to have an early fact-finding hearing.
There is also the obvious and unhappy point that many parents will simply not accept the findings made by the court. Rather than putting them to one side, they will persist with their allegations, perhaps even appealing against the findings of fact. And in such a case we might be back to ‘square one’.
The other idea is the issuing of general guidance to parents on what a court would regard a reasonable amount or pattern of contact to be, in cases where there is no safeguarding risk to the child. It is thought that such guidance on the range of outcomes that are regularly considered to be the ‘norm’ in the majority of cases would help manage the expectations of parents, and therefore both reduce dispute and increase the chances of settlement by agreement. The idea could be linked to 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 of a dispute.
It certainly seems like a good idea. Any family lawyer will have come across many cases in which the expectations of a parent are wholly unreasonable. They expect, for example, that they can stop all contact by the other parent, or that they will persuade the court to order that the child should live with them, in circumstances where that simply is not going to happen.
Of course, it is the job of the lawyer to explain to the client when their expectations are unrealistic but of course, in these post-legal aid days, many parents do not have a lawyer to tell them these truths. The result is cases that are much more heavily litigated than they should be, and the victims of that are, of course, the children.
The idea is not new, but the stumbling-block until now has been the fear that such guidance might amount to pre-judging the case. Without a full investigation of the case the court is obviously not in a position to make a final decision, but the parties (through their belief as to what the outcome is likely to be) and the court (through the imposition of a temporary order) might effectively be deciding the case before all of the evidence is in. It is certainly an issue that will need to be given thorough consideration before any such guidance is published.
Lord Justice McFarlane told the conference that he intends to embark upon a ‘drains up’* tour of the family courts in the autumn, during which he will canvass the views of family judges on this idea. I’m sure that had he done that just twenty years ago the overwhelming response would have been negative. However, I’m not so certain that that will be the case now, with ‘modern’ judges being perhaps less cautious and less concerned about things that used to be universally accepted (and perhaps unchallenged) norms. Maybe the idea of managing parental expectations, and the benefits that that might bring, will outweigh the fear of pre-judging cases.
Whatever, I’m sure that the President, as Lord Justice McFarlane will then be, will report back to us upon his findings after his tour, and it will be fascinating to find out what they are, particularly as they are likely to be central to what he will try to achieve in his term as President.
You can read the full speech here.
*For those who are unfamiliar with this expression, as I was before reading the speech, I believe it is a reference to lifting drain covers, to see what unpleasant things you might find beneath. Not a happy image, but clearly the President-to-be is determined to uncover the worst, and not just the best, of the family justice system