This is part of a series of articles we are publishing in TCW designed to challenge one of the most powerful orthodoxies shaping family justice across the Western world, an orthodoxy that is harming children and parents alike. You can read earlier articles here. Today a child and family attachment expert details shortcomings in court procedure.
ORGANISATIONAL change and reform should in theory be swift and efficient when experts are properly consulted, lead the drafting of legislation, when the law obliges their standards to be followed and those involved in applying the reforms are motivated to make it work. Often, sadly it is not.
A case in point is the 1989 Children Act. Rather than making children’s lives better, it made things worse. Legislators discarded and misrepresented the consultations of child development experts and they still do. Civil legal procedures, designed by lawyers for lawyers, were cut and pasted where they don’t sensibly or healthily apply, namely, processing separated families’ problems.
There are a number of reasons. British judges get just three days’ training before sitting on the family bench. The Act in effect empowers judges with no child-development or mental-health qualifications to make decisions matching what is labelled as ‘in the best interests of the child’. Forensic experts have tested the label and declared it a euphemism.
In the UK, there’s no explicit, legal obligation or guidance providing degrees or amount of child-parent time required in separated families, regardless of their circumstances. Nor is any expected. The bottom line is that the Children Act 1989 doesn’t acknowledge the needs of children, parents and extended families to have attachments or to spend time together. Which is why private family courts are clogged with parents litigating their desperate hopes of spending more time with their beloved children while the other parent prevents it.
One parent withholding their child’s time with the other may or may not be doing needless harm but it isn’t ‘legally’ wrong. But the parent losing out on that time isn’t legally right either when all they want is to see their children. Laws and legal procedures should encourage good parents to seek adequate time with their children, not prevent it as they do, nor grossly discriminate against that parent. In the absence of such law and guidance, mediation cannot work, so parents end up going to court, to be paradoxically told that they shouldn’t be in dispute over children as it’s bad for their children.
Furthermore, as touched on in yesterday’s article, voids in expert knowledge are filled by academic and lobbyist influencers who are neither child-development nor mental-health qualified. Yet their perspectives determine education, training and professional practice. Children’s lives are largely decided by ‘professional opinion’ from workers lacking specific training and appropriate resources. In the process many families’ ‘faults’ soon get bigger, destroying their resources, exacerbating existing mental health issues, and creating more. Courts then mismanage an ever-deteriorating outcome. This costs the private pocket and the State dozens of millions every year to achieve.
UK judges are advised by Children and Family Court Advisory and Support Service (CAFCASS) ‘reporters’ – an army of social workers providing welfare reports for family courts whose typical learning and experience simply does not prepare them for the circumstances and pressures of each unique case or the several dozen caseloads they bear and where no adequate theory, assessment or practices are applied. CAFCASS was originally set up as a non-departmental body under the Lord Chancellor’s Department (LCD) to keep it independent of other agencies. A scathing investigation into CAFCASS in 2002 led not to improvements but their avoidance. CAFCASS was instead inexplicably relocated in 2003 to the Department for Education. Lord Falconer, the next Lord Chancellor, was later found in contempt of Parliament for attempting to suppress and outcast a CAFCASS Board whistleblower.
Calls by candid experts of all genres to scrap CAFCASS were also ignored after the Family Justice Review in 2011. CAFCASS was again shifted, this time to the Ministry of Justice where it was monitored by Ofsted, a quango which still oversees it, and has graded it as ‘improving’. But Ofsted hasn’t the child development expertise, forensic skills or resources necessary to investigate whether the best psychological, social work and legal practice is applied, either. Ofsted does not monitor outcomes where judges sided with CAFCASS opinion. Improving CAFCASS is a never-ending project of avoidance, maybe because CAFCASS was intended as the perpetual scapegoat for the failings of laws that are ideologically formulated and protected.
Expert witnesses can be instructed under Part 25 of the Family Procedure Rules, which govern the use of expert witnesses and assessors in family courts, to help resolve cases. But they’re normally trained to assess individuals in other environments, not in troubled families suffering litigation stress, some of whom may be displaying psychologically damaging, parental alienation strategies and behaviours. Few experts have taken the extensive, additional training (that is legally mandated by the rules) to enable them to assess and help resolve these and other types of complicated cases. Judges who never enforce the rules and case law requiring experts to have specific and regular training have spent decades expressing their frustration at expert witness quality.
Courts prioritise domestic abuse allegations. That can take months, years, or never. Courts sometimes get it wrong. I’ve seen a dangerous abuser given custody of children, then alienate them against their mother. False allegations are common, sometimes calculating and malicious, or from insecure and traumatised parents. Courts sometimes process them wrongly too. Whether a court is right or wrong in its belated findings, the damage of delays may be worse than the abuse alleged.
Clinical studies demonstrate the harm inflicted by the ‘primitive’ system we run. But Whitehall, successive governments, CAFCASS, the Family Justice Council and British judiciary gravitate even further towards biased laws and procedures that will destroy even more child-parent attachments under the euphemism of protecting children. Requests to see judicial training content are declined. There’s no case-learning facility because ‘each case is different’. There are no performance measures or obligations to achieve best-attachment outcomes, any time soon. Similar cases get stuck in limbo and end with different outcomes. Case data is boxed under courts, not on central servers where patterns which are denied to exist would be spotted every minute.
Evolution, common sense and science point to lifelong, mental health disaster when children don’t see enough of or lose a good parent, and vice versa. But embedded, British activists have driven laws and procedures that presume every case needs investigating without also acknowledging the damage of child-parent separation periods, inadequate parenting plans, or losing a good parent.
What is needed is skilled assessments of family functioning from day one that investigate all family dynamics such as domestic abuse, alienating behaviours and mental health. Some cases could be quickly resolved; a reduced number would need to go to court, but with highly trained judges already case-informed. Once snared in our current system, families with no safety issues can litigate for their offsprings’ entire childhoods in a parallel universe that is constructed contrary to children’s needs for two parents. Good parents, mothers and fathers, are fobbed off with substandard visitation packages that don’t work, or they lose contact with their children altogether on the flimsiest of professional opinion.
Statute must explicitly spell out parenting plans and their circumstances, so parents can avoid court. Freeing courts and training specialists would accelerate healthy resolutions in days instead of harms travelling down and across generations of families. Skilled and sincere assessments with helpful resources would mean that all arguments win instead of the current, perpetual and perceptual opposition.
But this is the UK, where feminist ideology now drives family policy, an ideology that cares not for children, nor for two-parent families. Such hope of useful reform is futile, and long dead. Don’t bank on a relationship with your children or grandchildren.
