The Children Act Paradox

When Kathryn McTaggart was asked to prepare an article for our #familylaw fortnight on the subject matter “Do Family Courts always make decisions in the best interests of Children” the response came back (in less than 5 minutes) “leave it with me”.

Some of you reading this will know that Kat has established a reputation for considered, kind, and above all “to the point” advice on our Panel of Experts  and this post highlights all those key qualities.

So, with a heartfelt “thank you”, I will pass the readers over to Kathryn.

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Writing about whether Family Court decisions are always in the best interests of children requires a gargantuan effort to separate the objective from the subjective.  There is a ‘best interests’ criteria Courts must follow and, if they do not do so, then the decisions are plainly wrong and can and must be appealed. That however ignores the vast human evidence that evaluates Family Court decisions and finds them wanting, unsatisfactory and sometimes unfathomable.
From my perspective as a family solicitor I cannot really recall any real shockers of decisions that stand out for their sheer ignorance or neglect of the best interests of the children involved.  Perhaps that is because most of the children cases I deal with settle after hard work and compromise, or I usually end up with a Court decision that I consider to be in the children’s ‘best interests’ myself.  This is not to imply that I have an unusually successful  children law practice but rather, that I take the slightly unfashionable view that our antiquated and imperfect system, bolstered by the under resourced but battling CAFCASS officers, mostly has judges who are committed, intelligent and sensible human beings who are determined, despite the challenges of the system, to make sound decisions in the best interests of children. 
The premise is really that in most cases ‘a relationship’ between children and both parents is in those children’s best interests.

Delay, emergency applications and actual emergencies
Unfortunately the system sets itself up for a fall.  The Children Act makes it clear that delay is likely to prejudice the interests of any child.  But when is a groaning Court system, relying on at least four busy legal professionals, the reports of overstretched CAFCASS and Social Services and, occasionally, at least one obstructive parent, going to be able to make speedy and lawful decisions in the best interests of children? 
Some of the worst decisions I have seen have been made swiftly without notice to the other parent on an emergency basis.  The judge has one sided information from a parent who considers the stakes are so high that to present misleading or even fabricated evidence is a reasonable thing to do in the ‘best interests’ of his or her children. The damage done, even on a short term basis, is often not at all in the best interests of the child as time progresses.  Better to get things done right than done quickly.
And it is also a case of priorities.  Objectively, the fact that your week’s summer holiday with your children in Spain may be at stake because the ex isn’t playing ball can’t really compete for Court time with an application to stop a child being abducted to Yemen.  However, that is not going to be of much comfort to the parent who has to explain to some very disappointed children there is no holiday this year.

Multiple judges, multiple breaches, no changes
The need to secure a Court hearing in a not untimely fashion means that the same judge will not always be available.  This is extremely demoralising for those parents whose time with their children is constantly frustrated by the other parent when a different judge treats each occasion as a ‘one off’ blip rather than a systematic denial of a relationship between parent and child.
Enforcement of existing contact orders remains problematic.  New legislation and various carrots and sticks to deal with failing to allow contact arise and judges try hard not be so namby pamby but really hands are tied.  When is it ever going to be in the best interests of children to reduce a mother’s (and in the vast majority of cases it is mothers) income with a fine or remove her from her children for a short sharp prison shock?  But that is cold comfort for fathers proceeding on the principle that a relationship with both parents is in the best interests of a child.
Parents oppose contact for lots of reasons.  Sometimes they have convinced themselves that no parent is better than one who does not measure up (in their eyes).  Sometimes, personal feelings of rejection and hurt make it impossible to see the value of a relationship between the child and the other parent and it is too painful to have even limited contact at handover.  Sometimes withholding a child is the most effective punishment for wrongs inflicted and, in any case, bad partner = bad parent.  On occasion it boils down to suspicion, dislike of a new partner or simply control.  For some it is the loneliness and fear of not having a precious child with them at all times.  Whatever the reason, these feelings are formidable and some parents will go to extreme lengths to protect their child or, in reality, themselves.

False allegations
Accusations of abuse, especially sexual abuse, are always horribly difficult to confront. The Court has no choice but to suspend, curtail or supervise contact (in the best interests of the child) until appropriate investigations have been made.  As a result the child in question suffers months of messed about contact in artificial environments, is questioned (however appropriately and skilfully) and, in some cases, subject to physical examination.  In the child’s best interests?  I think not.  But the risk of harm cannot be ignored either.  More parents than you would think consider that the end justifies the means.  In some cases, parents’ bad behaviour seems to actually be rewarded by the Court who assess that to continue to enforce contact will expose the children to emotional damage at the hands of the hostile primary carer and it is therefore in the best interests of the child to let the relationship with the other parent fall by the wayside.

When twice weekly contact becomes twice annually contact
Often the cases with the highest stakes are those in which one parent seeks to relocate to another country either with their new family or to return to their home country.  These cases are enormously complex and hinge on a multitude of factors individual to each family but, in very simplistic terms, the effect on the primary carer (and new family) of being forced to stay in a desperate practical, emotional or financial situation is balanced against the effect on the child of a reduction in contact with the other parent. When is reducing contact with a much loved parent in the best interests of a child?  But I suppose, neither is living with a carer who is in dire straits.  The Courts are less ready to give permission to go than previously but still these difficult decisions are made, apparently in the best interests of the children concerned.

Missing out
Sometimes the Court is faced with two parents whose hostility is such that only the most detailed and rigid order will suffice.  So if a best friend’s birthday party falls on dad’s weekend , too bad – the child misses out.  If dad’s ski chalet is only available in mum’s week, the child does not go.  Flexibility is almost always in the best interests of children but sometimes it is impossible and the Court must do its best to ensure relationships between parents and children survive animosity.

Making it all ‘equal’
In the days of shared care and ‘hands on’ dads the shared residence order is king.  Equal time is the new holy grail and some people really do make it work for themselves and, most importantly, for their children.  I cannot help but sigh inwardly when I am presented with a schedule by parents who have divvied up their children’s days between them so it is all ‘equal’ and ‘fair’ and have not noticed that their little ones will sleep in a different bed every night of the week.  Does this sound like it is in a child’s best interests?  I am not convinced. The Court and CAFCASS continue to have concerns about this type of arrangement, particularly for school age children but many parents believe ‘equal time’ is in the best interests of their children.

The imperfect parent
We continue to expect perfect decisions in less than ideal situations in an imperfect world. Not many of us would choose to have our children in the care of a cannabis user or with someone who has beaten his wife or who will have the children in the same bed in the morning with each new boyfriend.  But if that is who the child’s parent is then that is what the Court has to work with. A relationship with both parents will be in the best interests of the child unless there are serious and pressing concerns about the harm this would cause to the child.  Sometimes that leads to what are considered surprisingly lax decisions in the eyes of the other parent.

Beating the paradox
So when are Court decisions in the best interests of children?  The answer is always and, sometimes, never.  It is the paradox of the Children Act.  The objective and the subjective.  A Judge is not of your family although he or she may well do their level best to educate his or herself about what that means.  A decision will be made in the best interests of the children as identified and assessed by an unknown third party.  If parents want a decision that is truly in the best interests of THEIR children, then they must make that decision themselves, jointly with their co parent.  Anything else will undoubtedly be in the children’s best interests but, at the same time, probably not so.

Kathryn McTaggart is a family solicitor with Woolley & Co, Solicitors.  Based near Cardiff Kathryn helps clients with children throughout England and Wales.  For more details about the help available visit www.family-lawfirm.co.uk.

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Please feel free to add your comments to this post. We appreciate that for many readers some of the issues around Family Court bring with them strong emotions. We will endeavour to post up all comments – but would ask for considered language at all times.  Many thanks.

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About onlydads

Single Dad living near Totnes in Devon. I founded www.onlydads.org in 2007 and live with my daughters Priya, 14 and Anya 11. I write about single parenting, work, overcoming trials and tribulations and sometimes not overcoming trials and tribulations.
This entry was posted in Family Law, Family Law Fortnight, Guest posts, Putting children first, Uncategorized. Bookmark the permalink.

7 Responses to The Children Act Paradox

  1. ABeautifulMind1 says:

    Thank you for such a great article. It is really heartening to read that you are so supportive of parents reaching the right decisions for themselves. Reading things on @onlydads site really introduced me to a whole new world! I honestly, never thought that such things went on. I read in the Times recently, that parents go to court to increase access on a day by 30 minutes? Surely, that can’t be right?

    I cannot for the life of me understand the games of chess that people play with the most precious pieces of all, their own children. Yes; I understand that emotions come into play, having been through an appalling marriage myself! But to give the most important decisions of all about my children over to a stranger in a court….. that’s just bizarre to me. I mean, how could they possibly ‘know’ what’s best for them, however much they apply themselves to your case?

    Personally, as a couple we dealt with the division of assets ourselves and then each rung our solicitors and said “this is what *we* want, please put it into a legal agreement”, which was then ‘rubber-stamped’ by the court. Neither of us have ever been into a family court. In fact, he doesn’t even speak to me. Ever!!

    The children access arrangements were fluid because everyone’s lives are fluid. What’s right today, may not be right tomorrow. To me, if a child is having an absolute whale of a time with the non-resident parent but it is ‘time to go home’ (to the other parent) then why on earth would the resident parent insist on cutting short their fun?? Because a Court Order says so?! Hmmm… all of that stuff is really not for me. Does it *really* matter that they are back later one evening or even the next day? I just wanted my children to be happy and to see their other parent being happy too.

    This has all fascinated me so much though that I am hoping for a new career path. I have applied to do a Masters in Social Work, with the longterm aim of moving across to CAFCASS as a Family Court Adviser. It would be an honour to work in such an important role for the children.

    Anyway, I hope I haven’t offended anyone. I know it’s a very emotional subject. This is just my view. Thank you, Kathryn 🙂

    • ABeautifulMind1 says:

      oh, and the timescale wasn’t really drawn out. It took just 6 months between leaving (into rented) and buying my new home. It would have only taken 4 months but for a mistake with the court’s new computer system and our case got missed. 🙂

  2. Thank you for your comments. CAFCASS plays such an influential role in children cases and it is always good to know that that good, dedicated (and human) people will be joining the ranks!

    I have noticed recently that CAFCASS officers are becoming increasingly proactive in trying to get parents to agree on at least some issues before making their recommendations, often leaving more minor issues to parents, encouraging discussion and providing mediation type meetings before reporting. Judges will pretty much always take the view that arrangements between parents are not only much better for children but much likely to work in practice.

    That said, if parents do not take up these opportunities, CAFCASS must recommend and the Court must decide. And parents (and, most importantly, children) will have to live with those decisions.

  3. Rob says:

    This is a really interesting article and makes some excellent points.

    I’ve been on the receiving end of a (at times hostile and obstructive) mother and I have to say that of all the organisations and people I had to deal with, it was the Judges who applied any form of common sense and fairness. Yes, the rest of the court’s system all purported to be “on the side of the children” but the reality was they mostly “sided” with the mother, certainly when they didn’t know the specifics of our case. Fortunately for us the Judges didn’t hold the same entrenched opinions.

    Innocent until proven guilty? Not if you’re a father caught up in the family courts system. Here you start off from a position of almost being considered “unfit” to care for your children, you’ll be the one arguing your case on points of law whilst the mother cries softly in the corner and they all pass her tissues, and yes, you’ll be the one feeling like you’re a control freak when you finally troop into court to ask for an order for the surrender of your children’s passports because, yet again, you’re being obstructed from going away on holiday.

    At times you want to give up. You want it all to stop. And yes, it would be so easy to stop, to go quietly into that good night, to settle for seeing them when you’re “allowed” to, when it fits in with your ex’s nights out or weekends away…

    I couldn’t do that. I knew if I did I’d never be able to stand with my kids when they’ve grown up and have a beer with them. I’d never be able to look them in the eye. Yes, people will try and convince you that you shouldn’t fight, that’s it’s not “in the best interests of the children”. Don’t listen to them. Fight. Fight. Fight. Fight until the dying of the light.

    If you don’t, when the time comes and you have to, the system around the courts will point at your inactivity and say “well, you didn’t care”. They’ll say “well, the children are settled now”. They’ll say “this isn’t in the best interests of the children“. And you’ll only have yourself to blame when the kids are 18 and they don’t know you and you don’t know them.

    Don’t get me wrong, I am massively in favour of mediation, of a negotiated and agreed settlement without recourse to the courts, but if you’re a father remember that your children have an absolute right to contact with you and it is your job to protect that right. Negotiate the peace, then ratify it with a court order. With the orders in place, you can always choose to agree with your ex-partner to be flexible around them, but at least you’ll have the order to fall back on, especially in the first 5 years after your separation/divorce.

    1. In cases where contact is limited to every other weekend, it is normally the father that is asked to accept this (and yes, for all the reasons outlined in the original post above about finances, work etc but still, it’s normally the father/child relationship that suffers…)

    2. In cases where contact with the father is limited, there is a high incidence of this contact fizzling out and becoming almost non-existent within 2 years

    3. The reason court orders work is because, in situations where they become necessary, they remove any ambiguity and prevent one of the parents (normally the one with primary care) from acting unilaterally

    • onlydads says:

      Rob. Thank you for this. If you don’t mind OnlyDads will be pointing other Dads in the direction of your comments for many months and years to come.

      Your kids have a great Dad!

      Bob

  4. Rob it is true to say the best agreements are mediated but at the same time there is often only real security and continuity of contact with a Court order. Orders can regulate the position between parents as to who is the ‘parent in charge’ at any given point. Otherwise it can be a case of the parent with care the majority of time believing that the children live with them so they are uniquely placed and within their rights to make unilateral decisions in the children’s best interests. And we all know that can equate to no contact. But with orders you do get stuck with what you’re given. Being able to negotiate around the Court imposed framework for contact does provide children with the best of both worlds however.

    And I do agree that parents who are missing out on contact must act and continue to act or the lack of contact can work against them. Now there is not such a feeling at the outset that fathers aren’t really capable of looking after children, mainly because more fathers play much more of a part in day to day care of their children. However, some parents struggle to see that they need to keep up with regular phonecalls, letters, Skype and short visits if they want to have extended periods of time with a child who is usually not in their care, especially with younger children. Fathers who can be quite insistent on having their fair share of time with children sometimes have largely parented through Mother so end up with bored, upset and lonely children during contact. Unless this is addressed, contact can fizzle out through the fault of no one person in particular.

    I continue to be in awe of the parents (usually men) who put everything they have on the line to stay in touch with their children against great opposition. Some really do have no option but to contemplate the best part of 18 years of Children Act litigation. I believe that, not only are those men responsible for the changing attitudes in around and our family law system, but the ultimate reward is theirs and their children’s.

  5. Pingback: Family Law, Divorce, and Separation: Putting Children First | OnlyDads

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