A Horrible Weapon

It is one of the ways of completely shutting husbands out of the child’s life.  It’s a horrible weapon.

David Collier  (Alexander, 2013)

Estimates of the number of parents and their children who use the family justice system vary wildly: the Family Justice Review panel’s interim report stated that half a million mothers, fathers and children go through the family courts every year (Family Justice Review Panel, 2011a); in a 2006 speech, Harriet Harman estimated that every year over 1 million people were finding themselves in the family Courts (Harman, 2006); senior family judge Sir Paul Coleridge estimated that at any one time ‘3.8m children are to a greater or lesser extent caught up in the family justice system’ (Coleridge P. , 2012).  Every year around 215,000 children will witness the breakdown of their families; at least a third of them will lose all contact with their fathers  (Mishcon de Reya, 2009), and some observers have put the figure at well over half (Butler-Sloss, 2003).  These are huge numbers, and yet there can be no institution in this country which has greater sway over the lives of its citizenry but about which the general public knows so little.  Even those who don’t go to court act in its shadow, making the sort of arrangements they think it would order.

Typically parents who seek the help of the family courts to resolve disputes are normal mothers and fathers who, at the end of their relationship, are hurt, angry and anxious about what the future holds and feel unable to resolve the difficult issues surrounding child care without guidance.  Many couples can agree between themselves, but a large number cannot, usually because one parent is unwilling or unable to relinquish the care of their child to the other.  Once parents embark on litigation they surrender their parental authority to the court and can no longer make even the most elementary decisions regarding their children without judicial approval.  Ready access to the legal process to resolve disagreements which would have posed no difficulty to their grandparents infantilises parents and renders them incapable of caring for their children without governmental assistance.  It is only a small step from here for the state to take your children away entirely.

It has long been recognised that this court process exacerbates parenting disputes (Trinder, Connolly, Kellett, & Notley, 2005); when disputes are not swiftly resolved by the courts and are allowed to become protracted the positions of the parties become entrenched.  In V v V Bracewell lamented these—

intractable contact disputes which drag on for years with little or anything to show for the outcome except numerous court hearings, misery for the parents, who become more entrenched in their positions, wasted court resources, and above all serious emotional damage to the children  (V v V, 2004).

The problem had been identified by Nicholas Wall, later President of the Family Division, in a key 2002 report to the Lord Chancellor,

The court process is stressful for both parents and children, it is expensive for those who are not publicly funded; it is slow and adversarial.  It tends to entrench parental attitudes rather than encouraging them to change.  It is ill adapted to dealing with the difficult human dilemmas involved, notably when it comes to the enforcement of its orders (Children Act Sub-Committee of the Advisory Board on Family Law, 2002).

In a 2004 paper entitled Are the courts failing fathers? he said it again,

Unfortunately, the cases which have to go into this adversarial system are those least likely to benefit from it… the adversarial system is adult orientated.  It focuses on the position of the parents, not of the child, and thus has the tendency… to entrench attitudes rather than encouraging them to modify (Wall, 2004).

Campaigners argue that a child will generally benefit from both parents continuing to care for him and that judges should assist parents to make the transition into an effective post-separation arrangement and dissuade parents from seeking to undermine and eliminate each other.  Instead of the shared parenting model, a sole-carer, ‘winner-takes-all’ paradigm dictates the culture of the family justice system, in which one parent is awarded the prize of ‘residence’, while the other – almost invariably the father – is relegated to a subordinate and more-or-less marginal role in his child’s life.  It has become axiomatic that any parental conflict, deemed by the professionals to be disproportionately harmful to a child, is to be resolved by the exclusion of a parent.  As far as the courts are concerned it doesn’t matter who the source of this conflict is: the parent to be excluded is always the father.  Since around 95% of orders for sole residence favour mothers (Child Maintenance and Enforcement Commission, 2011), the usual outcome is that mothers acquire a de facto veto, also known as the ‘gatekeeper’ role, over the relationship between the father and his child; the onus is then on fathers to prove why they should continue to be involved in their children’s lives.  Liz Trinder describes gatekeeping,

[Mothers] presumed a distinctive and central maternal role rather than a position of parental equivalence and interchangability.  Mothers positioned themselves as child care experts and family managers (Trinder L. , 2008).

The flaws in this judicial thinking were highlighted by the Law Commission as long ago as 1988,

It is hard to maintain a parent-like relationship with a child who is only seen from time to time… there is a tendency to assume that if access is not working, it should be reduced, whereas some of the factors mentioned would point in the opposite direction (Law Commission, 1988)

‘The opposite direction’ is to increase the level of access or contact so that it approaches equality; minimal levels of contact are much more difficult to deal with for everyone, and are much more likely to result in an eventual loss of contact.  The rigid patterns of parenting often imposed by contact orders do not suit children, who need flexibility, especially as they grow older.  Unfortunately more flexible orders only offer more opportunities to interfere with contact and will be interpreted differently by the parties.

James Munby, who succeeded Wall as President of the Family Division, has also been critical of the system; in Re D he took the unusual step of giving judgement in open court, beginning,

On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven year old daughter D (Re D, 2004).

The facts in the case are easily summarised: a father applied for contact; there were 43 hearings (including no fewer than 9 final hearings all adjourned by the court) before 16 judges producing 950 pages of evidence (Re D (Intractable Contact Dispute: Publicity): History of the Litigation, 2004).  The father was ‘consistent and sincere in his wish for contact’, he was ‘a balanced, fairly well-integrated man who could acknowledge both his own deficits as well as reflect on his past behaviour and consider errors, misjudgements and misdemeanours.  His view of others was equally balanced; he had no difficulty in adopting another’s perspective and could easily acknowledge alternative viewpoints and alternative hypotheses’.

The mother consistently obstructed contact and the court progressively reduced it; the contact ordered, but never successfully enforced, dwindled away to nothing.  The case was characterised by delay: the father had a penal notice added to his order, a year later a suspended sentence was imposed, and after another year the mother was finally committed.  Munby’s judgment was given a full two years later.  The mother made numerous allegations against the father; all proved groundless.  Finally the father applied in despair to withdraw his application for contact.  Munby saw the case as illustrative of the failings of the system; even when the father lost his temper, Munby excused him as a man ‘goaded beyond endurance’,

In this case it is mother who is overwhelmingly responsible for the predicament in which [D] and her father now find themselves.  I simply refuse to accept that there is any equivalence – legal, moral, parental, or in any other respect – between a father who is ‘entrenched and rigid’ in his desire to have the contact which everyone other than the mother thinks he should have with his daughter and a mother who is ‘entrenched and rigid’ in her opposition to that contact.

Munby used his public platform to criticise the system,

Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system.  I can understand such a view.  The melancholy truth is that this case illustrates all too uncomfortably the failings of the system.  There is much wrong with our system and the time has come for us to recognise that fact and to face up to it honestly.

Munby identified eight fundamental failures in the court system, including the ‘appalling’ and ‘scandalous’ delays; the lack of judicial continuity; the delay in the court making a finding with regard to the ‘groundless’ allegations; the delay in appointing an expert; the delay in appointing a guardian; and ‘the characteristic judicial response when difficulties with contact emerged: reduce the amount of contact and replace unsupervised with supervised contact’.  He concluded,

From the father’s perspective, the last two years of litigation have been an exercise in absolute futility.  It is shaming to have to say it, but I agree with his view.  I feel desperately sorry for him.  I am very sad the system is as it is.

The second fundamental principle of the 1989 Children Act is that ‘in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child’.  Re D demonstrates that the courts do not observe this principle and that delay plays into the hands of a parent determined to obstruct contact.  Giving evidence to the Select Committee on Constitutional Affairs, Dame Elizabeth Butler-Sloss – then President – emphatically denied that tactical delay took place; the legal profession was equally forceful (Constitutional Affairs Committee, 2005).  In reality delay is the norm and there are often periods of many months between hearings while reports are prepared by welfare officers or while applicants wait for times when all parties, solicitors, barristers and others can attend court.  Many cases drag on for years, or until the child grows up.  The Select Committee admitted,

Given the strong animosity between the parties which is common in contested family cases, we find it hard to believe that tactical delay is not sometimes used to the advantage of resident parents… The resident parent who is involved in the contact dispute will be advantaged by any delay, even if the resident parent is behaving unreasonably.

The Committee concluded, ‘The courts are not the best place to attempt to resolve complex family disputes’.  Delay significantly advantages the resident parent because the courts are predisposed to preserve the status quo ante; given that contact applications are made only once contact has been obstructed, the status quo is taken to be the state of obstructed contact rather than the normal, satisfactory contact which existed before.  The longer this state continues, the more likely it is the court will uphold it.  It is vital therefore that any delay in proceedings is kept to an absolute minimum.  Astonishingly a report into tackling delay by Her Majesty’s Inspectorate of Court Administration found that,

delay is not a category of complaint monitored by CAFCASS, so the organisation is unable to use this helpful source of consumer feedback to help assess or understand the nature of concerns about delay from a user perspective, or to show any subsequent action taken to improve matters (Her Majesty’s Inspectorate of Court Administration, 2004).

Delay in appointing a CAFCASS Family Court Advisor and then persuading her to produce a report had reached such a state that five years after Re D one desperate judge summoned Anthony Douglas, the CAFCASS CEO, to his court (by video link) to explain the ‘deplorable and entirely unacceptable’ situation (Gibb, 2009).  The judge took advantage of the new rules on media access to alert the media which obligingly published some of the waiting times which were up to 22 weeks in Portsmouth, 26 to 34 weeks in Bristol, and 34 to 40 weeks in Trowbridge.  So unable was CAFCASS to resolve this situation, that Sir Mark Potter, then President, was forced to issue interim guidance to oblige CAFCASS to allocate its resources more effectively.  This included drawing up a timetable for each new case and producing reports much more rapidly than hitherto: within 6 weeks for simple cases and within 12 for the most complex.  Reports were no longer to be generalised, and had to focus on answering specific questions; increasingly the courts would rely on preliminary ‘Schedule 2’ letters and not on the more comprehensive Section 7 reports.

Munby also denounced the courts’ ineffective response to ‘groundless allegations’,

False allegations of misconduct are highly damaging and destructive… The court should grasp the nettle.  Such allegations should be speedily investigated and resolved, not left to fester unresolved and a continuing source of friction and dispute.  Court time must be found – and found without delay – for fact finding hearings.  Judges must resist the temptation to delay the evil day in the hope that perhaps the problem will go away.  Judges must also resist the temptation to put contact ‘on hold’, or to direct that it is to be supervised, pending investigation of the allegations.  And allegations which could have been made at an earlier stage should be viewed with appropriate scepticism (Re D, 2004).

Acts of domestic violence and child abuse are rarely perpetrated in public, meaning that corroborative evidence is seldom available.  The court, however, is obliged to ‘prefer the evidence of one party over the other’ and must make its decision.  If the accuser can appear faltering of voice and close to tears while the accused is angry at the allegations made, it will be apparent to the court who is the victim and who the aggressor, regardless of the facts.  The vast majority of parents are ordinary, devoted carers who want the best for their children; the sad truth, though, is that there are also parents – both mothers and fathers – who are prepared to abuse a partner or child to serve their own ends.

Parenting groups argue that cases in which serious allegations are raised should be transferred to the criminal court before transfer back to the family arena.  They want allegations to be made on oath and for there to be charges of perjury or attempting to pervert the course of justice where allegations are found to be unproven (there is no perjury in the family court).  They also want serious allegations to be rejected and to have no influence on a case unless they can be proved beyond reasonable doubt.  This is not unreasonable; in the state of Oregon, for example, legislation provides that ‘A person commits the offense of making a false report of child abuse if, with the intent to influence a custody, parenting time, visitation or child support decision, the person makes a false report of child abuse to the Department of Human Services or a law enforcement agency, knowing that the report is false’.  False allegations are made disproportionately, almost exclusively, in custody cases for the simple reason that they are effective at securing custody.  In a rare outburst of judicial honesty, retiring Australian judge David Collier admitted that allegations of child sexual abuse were increasingly invented by mothers to stop fathers from seeing their children (Alexander, 2013),

When you have heard the evidence, you realise that this is a person who’s so determined to win that he or she will say anything.  I’m satisfied that a number of people who have appeared before me have known that it is one of the ways of completely shutting husbands out of the child’s life.  It’s a horrible weapon.

In the family courts the maker of a false allegation has only to substantiate it to the civil court ‘balance of probabilities’ standard as opposed to the criminal law ‘beyond all reasonable doubt’ standard.  Thus whoever is the most convincing in court will be favoured, and the experienced and eloquent barrister will have the advantage over the intimidated and nervous litigant in person.  It is sometimes said that the legal profession has spent 25 years since 1989 discussing the meaning of ‘likely’ – and still isn’t done with it; it is defined by Donald Nicholls:

The balance of probability standard means that a court is satisfied an event occurred if the court considers that on the evidence the account of the event was more likely than not (Re H and Others (Minors) (Sexual Abuse: Standard of Proof), 1996).

Judge Nicholls further refined the probability standard by saying that the more serious an allegation is, the less likely is it the event happened and the stronger therefore must be the evidence presented before the court can decide the allegation has been established on the balance of probability.  A positive effect of the principle was that as allegations became more serious, so the courts demanded stronger evidence and the standard of proof required approached the ‘beyond reasonable doubt’ standard, thus protecting the victims of false allegations.  However, there were two negative effects.  The first was that children who were the victims of serious abuse which could not adequately be proved were not protected; Timothy Lloyd expressed his concern in the same case,

It would be a bizarre result if the more serious the anticipated injury, whether physical or sexual, the more difficult it became for the local authority to satisfy the initial burden of proof, and thereby ultimately, if the welfare test is satisfied, secure protection for the child.

Secondly, judges were assuming that if they could not prove an allegation absolutely false the standard obliged them to proceed as though the allegation were true.  Thus many children were losing parents who posed no threat.  A further consequence of having two different standards is that a parent can be tried in the criminal court and be found not guilty but still be tried again in the family court where the judge may be less willing to dismiss the same allegation; the proceedings will then continue on the presumption the allegation is true.  In Re B Leonard Hoffman explained the courts’ approach in terms of binomial theory,

If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are 0 and 1.  The fact either happened or it did not.  If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.  If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened.  If he does discharge it, a value of 1 is returned and the fact is treated as having happened.

In civil proceedings the standard of proof is stated to be ‘on the balance of probabilities’.  Expressed mathematically this is P > 0.5.  If a court were to find on the evidence that P = 0.5 (i.e. that the occurrence of the event was as likely as not) then the standard would not be met, as the respondent to the allegation that is sought to be proved is always entitled to the benefit of the doubt.

Thus, it is clear that in all civil proceedings P cannot be set higher than a scintilla above 0.5 (Re B (Children) , 2008).

Some had feared that a third standard of ‘real possibility’ (P > 0) would be introduced into family law to further lower the threshold.  Brenda Hale sought to resolve the confusion, rejected the escalating standard of proof and confirmed the ‘binary’ standard, emphasising that the ‘beyond reasonable doubt’ standard has no place in family court proceedings which are not carried out in order to punish parents but to protect a child, ‘the consequences for the child of getting it wrong are equally serious either way’,

My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold… is the simple balance of probabilities, neither more nor less.  Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts.  The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.

To allow the courts to make decisions about the allocation of parental responsibility for children on the basis of unproven allegations and unsubstantiated suspicions would be to deny them their essential role in protecting both children and families from the intervention of the state, no matter how well meaning that intervention may be.

Parents’ groups were relieved that an even lower standard of proof would not be introduced to allow easier state intervention based upon ‘unproven allegations and unsubstantiated suspicions’, but many would argue the existing bar was not sufficiently high to prevent children losing a parent or being taken into care when neither was justified.  Family judges resist the transfer of allegations to the criminal courts: most wouldn’t stand up.  Nicholas Mostyn sought to reduce the degree of uncertainty in fact finding; the burden of proof, he said, must be on the party making the allegation (AA v NA & Ors, 2010).  Either an allegation is proved or it is not; to find an event is as likely as not to have happened is not the same as a finding that an event is more likely than not to have happened: the probability must be greater than 0.5, even if only by a scintilla.  The father had made over 80 allegations against the mother; Mostyn said,

Many of these were wholly trivial, unkind and unnecessary and were designed to destabilise her.  They were all found to be false, by which the District Judge surely meant that they had not been proved to the requisite standard.  For none of these was P > 0.5.  It might be said that there is no difference between setting them aside and leaving the findings intact as in each case the charges simply remain unproven.  But given the binary system of fact-finding explained by Lord Hoffmann the effect of the judgment is to return for each of these allegations a value of zero, and a finding that they did not happen.

Thus if a court finds that an event is as likely to have happened as not (P = 0.5), it must conclude that it did not happen (P = 0).  The force of Mostyn’s decision is to reject the passive ‘not proven’ finding and to insist on the active ‘did not happen’.  This approach would ensure that unproven allegations do not continue to hang around cases, unjustly influencing outcomes.

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