It came to our attention over the weekend that a pressure group were talking about a “campaign” that would “name and shame” mums who, in their words, are “contact deniers”.
Stunts like this get dads nowhere and need to be avoided. As any man who has been through the family court system will tell you, courts are very quick to pick up on behaviour that they deem to be in any way unreliable or untrustworthy. We felt it important to state very clearly that such action would not be in the best interest of children, or dads.
OnlyDads asked Chris Fairhurst of Stephensons to set out some of the legal reasons why such action is just not on.
There has long been a tension between the need for privacy in family law proceedings, especially those involving children, on the one hand, and the call for openness in family law cases on the other, in order to provide transparency and public confidence , especially from those who perceive that the Family Justice system operates in secrecy thereby avoiding the fairness of public scrutiny.
Primarily, the restrictions upon open courts in family cases involving children, are there first to protect the identity and therefore the welfare of the child and secondly the parents, or any other party involved in the proceedings. Until a fairly recent change in the law there were very few cases where the press had been able to report upon such proceedings. This changed from April 2009 following a number of calls from the press and other groups to allow more openness which resulted in changes to court rules allowing the attendance of the public and press in appropriate cases, but even so the details that can be reported are usually limited to the subject of the dispute rather than identification of the parties or any children involved.
I was actually representing a parent in the first instance of an accredited member of the press attending at a family hearing in the Manchester County Court on the first day the rules came into force nearly 4 years ago. Apart from describing the proceedings as “impenetrable”, the journalist didn’t seem to take much from the experience and certainly didn’t return. I’m not sure once afforded the opportunity journalists in general where much bothered after all about the cases involving the majority of individuals, or their children, preferring instead to camp out on the door step of the Royal Court of Justice in London, waiting for the participants in the latest celebrity “mis-match” or “big-money” divorce to step out into the sunlight waving their order.
Those truly interested in cases involving a child are the parents themselves, who will be acutely aware of the particular and unique circumstances of their situation and the complexities of whatever it was that got them to court in the first place.
More changes were contemplated by Parliament to change reporting restrictions but following further consultation have backtracked from this, perhaps in recognition of the difficulties of legislating in respect to the private circumstances of individual families. It now seems likely that proposed legislative changes that were on the statute books, but not implemented, will now be repealed in any event.
A very recent updated Commons Report “Confidentiality and openness in the family courts” sets out the various arguments and why the Government has now pulled back from greater openness since the Family Justice Review was published, stating:-
“this complicated and sensitive area of law” needed to be reviewed carefully, including gathering the views of children with experience of the family courts. Further legislative change would not be brought forward in the near future but other measures would be considered.
We will instead look at measures that can increase the amount of publicly available information about the work of the family courts, including encouraging judges to publish more family court judgments. In particular, Ministers will examine the results of the family court information pilot, which trialled the online publication of family court judgments in an anonymised form.”
That will not satisfy all however, as calls grow louder from some quarters, for parents whom another alleges may be obstructing or blocking contact with a child, to be effectively “named and shamed” in public, no doubt with the assistance of Facebook, Twitter or whichever other digital media might be at hand at the time.
If anyone was thinking of getting involved in such a practice. Forget it. Don’t. Your contact with your child may depend on it. The person doing the “naming and shaming” is usually the one who, rightly or wrongly, perceives they have been wronged. The parent being “named and shamed” faces the upset of public exposure, and most importantly the very child whose interests the parent seeks to protect is identified and made ready for the taunts in the school playground that would inevitably follow.
Children quite rightly inflame passions. Something would be wrong if they didn’t. But families are complex and unique, and things unfortunately don’t always go as planned. If separated parents cannot agree things between them, it is very easy for them to fall into the trap of trying to protect what they believe to be their “rights” rather than those of their child, and this can then ingrain the difficulties and cause frustration. Children have “Rights”, Parents have “Responsibilities”.
The family law system for resolving disputes in respect to children is not perfect, but despite the misconceptions, it tries it’s best to resolve matters for the best interests of the children concerned, taking into account all the circumstances of the family and if appropriate the views of any child. It is rare that any separated parent is permanently excluded from contact with a child, by the court. Although there are still some unfortunate examples of one parent, for whatever reason, trying to seek to block and frustrate contact with another, if no contact or indirect contact is ordered by a court, it would have to be for very good reasons which the court has decided, with the assistance of expert advice, impact upon the welfare and best interests of a child.
If a separated parent who was not in proceedings but seeking contact with a child, “named and shamed” another parent, they are more likely to alienate the other parent and make the situation even more difficult than they find themselves in already. What parent is going to want to co-operate then?
We have recently seen the consequences of false allegations being shared by digital media and although the libel courts are beyond the reach of most individuals, an allegation to the Police or an application to the court for a Non-molestation Order is not. Further, if such a parent having made such an allegation thought they would then make an application to court for contact, I can’t imagine such behaviour would be ignored by the court, in its subsequent decision-making.
If in court proceedings, such a declaration would put a parent in contempt of court, landed with a probable fine, possible imprisonment, injunctive orders and any decisions for contact with a child far more restrictive than might otherwise have been.
If you are trying to sort out arrangements to see your child it is far better to get proper advice from an experienced Family Lawyer. They will be able to advise you of your options and hopefully assist you in agreeing arrangements for your child with the other parent, without the need of applying to court. It should be noted that if you might need Legal Aid, for most family law cases it will disappear from 1st April 2013, unless involving an element of Domestic Abuse. Therefore, it is important not to delay getting advice if you have any doubts about your situation. More importantly any delay could affect your child.
A local Law Society Accredited Children Panel Specialist can be found here
By Chris Fairhurst – Family Solicitor – Stephensons Solicitors LLP
(You can also follow Chris on Twitter by clicking here)
We are grateful to Chris for this article – and we hope any dad thinking of doing a unilateral ‘name and shame’ job will listen to the advice.
Comments are welcome…