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The role of fathers in families is important…Lord Justice McFarlane’s speech

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

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. Paul Massey says:

    In 2004 Munby LJ criticised judges for ‘flabby judicial responses’, saying that these gave a very damaging message to recalcitrant order-breachers/ignorers. Mrs Justice Parker in re H stresses that a damaging message is also given thereby to children.

    In 2015 only 1.2% of all orders were enforced according to MoJ figures….

    In short we have been talking about reforming the broken family law system for as long as we have been talking about England winning the World Cup…with depressingly similar results.

  2. DD says:

    Of course the legal profession won’t want general guidance to parents on what a court would regard a reasonable amount or pattern of contact to be as this limits their earning potential. Which is exactly why most of them don’t tell the truths !!

  3. Terry james Scales says:

    The answer is simple, the issue is multi varied. The best outcomes would be to take the state out of family life, that we adopt an approach focused on responsibility, agency.
    Humans readily gravitate to the lower end of the moral spectrum and the win lose mentality embodied in family law only exacerbates the problem.
    Nothing changes, the ideology driving family law is malevolent, it cares nothing about family, only it’s destruction, we need to expose this before any substantial change can occur.
    How are we so blinded to the injustice readily meted out in family court’s.
    Please someone explain to me that the greater good is served by finding a father guilty of domestic violence by allegation alone. It’s utterly deplorable, but this happens with extreme proclivity. Why when we know every pathological problem that children and adults suffer with has it’S roots in father alienation, that the evidence is overwhelming, yet social workers, cafcass, judges still order sole custody over 90% of the time to mothers. There is only malevolence in family law.

  4. Lola cassidy says:

    Children do not need abusive fathers in their lives causing mental health and anxiety,bed wetting the list goes on.what is a really serious concern is women are threatened with the removal of their children if they stay in the abusive relationship.women who leave the abusive relationship then find themselves being further abused in family court while trying to protect their children this is happening to thousands of women every day.

    • Stuart says:

      Lola I think your comments are gender polarised and unfortunate. Of course Children should not have abusive parents in their lives – neither mothers or fathers. Sadly there are abusive fathers, but similarly there are also abusive mothers as well, whether you like that fact or not. Abusive parents, in their drive to hurt their partner, frequently distort their vulnerable children’s easily
      influenced minds, and exclude children from the benefit of having both parents in
      their lives. Both mothers and fathers have to leave abusive relationships – and the extension of that abuse towards their children – excluding the absent parent from a relationship with their children – happens frequently to both mothers and fathers. Unfortunately it is usually the father who is excluded by this abuse, and that alienation is hugely damaging to children, and the Family Courts notoriously deal with this
      very badly. I know because I am there. It is silly to pretend that women are all good and that men are all bad and it really does your argument no good at all to pretend
      otherwise. I very much hope you can see how harmful your viewpoint is to both children and innocent men and women.

  5. Terry james Scales says:

    That’s untrue in the main. and their is no evidence to back your allegations that this is happening with proclivity. I have done nothing but research about fatherless Family’s, I printed off at least 100 research papers and took them with me to court.
    Women beat up on men more than men on women, the empirical evidence is in. Women abuse children more, granted they are the main carers but that is still a fact.
    Men are evicted and alienated from their home, child and entire lives on allegations alone. Do you not understand the gravity of this, that it runs perpendicular to any resemblance of Justice and that the impact it has on decent men and children is crushing.

  6. Helen Dudden says:

    I see mediation as being a key factor in many of the issues. Mother or father, or both if the law sees no reason for not allowing. I believe Family Law has been a very unhappy situation for many.
    John, I like blame free divorce, if the marriage or relationship is over, let it be. Who is right or wrong has always been the wrong attitude. But that concerned the end result.
    We draw a line under the ending of the relationship. Now what’s important, rather than not important. No one should bully or alienate, that’s not part of what the future holds.

  7. Nathan Taylor says:

    I’ve been accused of loads of things in court which thankfully I proved false however as it took a year and a half to prove my innocence, cost me thousands, and because the process took so long I lost contact with one of my children and there is nothing in the system to inform the child when I parent has been telling them fibs.

    Unfortunately I now have to go thought the whole process again with another flurry of false accusations, easy to disprove but it will cost thousands whilst my ex gets free legal aid and at the end of it it will probably be a hollow victory anyway as by then the other child will most likely have been brain washed not to see me. HOW IS THIS FAIR?? How is this making the world a better place. ?As many are willing to testify, I was a really good and dedicated father, I don’t do drugs, I work, I don’t have a drink problem and I really loved my kids. My kids are now growing up never seeing their father..

    Anecdotally I know of two men who sadly took their lives as a result of this. One I know was completely made up because the accusers who felt very remorseful told me they had made it up.. (I felt sorry for the daughter as she was just a child when she was pressured into making a false allegation by the mother. )..

    Point is this really in not a functional system. There is virtually no support for men, To be honest it often feels like im dealing with people who have a cold hatred of men because of some ideological mumbo jumbo they learnt somewhere. . And there seems to be nothing in restoration from authorities once they know they have made mistakes.

    No idea how many men are taking there lives because of this as it’s hard to get reliable research in this area. Again what does that say about our education system. I rarely hear anything in the media or from our politicians either.

    Feel really worried about my kids future, I generally don’t like identity politics but know Im not the only one who has been disenfranchised like this.

    I just wish I knew what I could do to stop this happening…

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