Judges aren't allowed to dither. Judges have to decide. And once they've decided, that's it. They can't change their minds a few weeks later and turn back the clock. If they've got it wrong, the most they can do is give permission to one party or the other to appeal it.
L-B children
This case took a turn which must have come as a total shock to all the lawyers involved. It was a serious children case. On 15th December, following quite a long hearing, spread over several months, a circuit judge gave a very short judgment about how a child had acquired some serious injuries. In plain and simple terms, the decision was that it was the father who had done it and the mother had not been involved. Not only was the decision clear, it was obviously very important indeed.
The local authority prepared a care plan for the two children of the family. They were both to stay for the time being with their mother's parents. There would be a final hearing in February to decide what the best long term arrangement would be. Less than a week before the hearing, however, the judge issued what was described as a perfected judgment - I suspect that some of the participants might have had a rather different term for it though.
In what the Court of Appeal described as a bombshell, the judge changed her mind about the facts of the case. She now decided, on reflection, that it was not possible to say from the evidence which she had heard, just how the child had been injured. So there was no longer a finding that the father had been responsible at all. Even the lawyers were thrown by this, to the extent that although they could see that something was seriously amiss, they struggled to find the right way of dealing with it. The appeal which was filed was effectively a request for further explanation of the change of mind from the judge. When the Court of Appeal got hold of it, though, they invited the mother's team to change it to an appeal on the basis that the judge, having given a judgment in December, was bound by it and couldn't at a later stage just change it completely.
The judgment goes in some length through the question of whether, in procedural terms, it was open to the judge to do that. It goes over the difference between a judge giving clarification of reasons for reaching a decision and actually changing the substance of it. The fact is, the Court of Appeal would rather a judge changed a wrong decision to a right decision than the whole thing come up for appeal. But there has to be finality at some point. Once the decision has been turned into an order of the court, it can't be revisited, it can only be appealed.
In fact, this case now, sadly, will go to further appeal by the look of it. The father will now seek to appeal the original findings of fact and will doubtless say that if even the trial judge didn't have confidence in her own decision, no other court could either. The effect of the decision, which in itself seems perfectly sensible, is that the judge now has to decide on the children's future care, based on a fact which she herself is no longer convinced of. A judge's lot, I'm sure, is never easy, and this judge's lot seems especially difficult now.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Showing posts with label children. Show all posts
Showing posts with label children. Show all posts
Thursday, 19 July 2012
Friday, 6 July 2012
Something new(ish) in the Vicky Haigh saga
Some little while ago I blogged about Vicky Haigh and others and reminded myself and any readers of the vital need to preserve confidentiality in children proceedings. To my considerable surprise, I find that the Daily Mail is back on the topic.
Vicky Haigh, the latest
For those of you who haven't been following this story, Vicky Haigh is serving a prison sentence for breaching a court order that she have no contact with her oldest daughter. The order was made because two judges separately concluded that she had made up false allegations that the child's father had abused her and she had then sought to persuade the child to repeat these allegations.
I really can't see why this article has been published. There is no new material in it. Vicky was sentenced over six months ago now and this was reported at the time. The article itself is a masterly piece of fence sitting by the journalist. On the one hand there is a sentimental tone, apparently sympathetic to the plight of a mother separated from her child. On the other hand, there is no criticism of the original decisions by the court that Vicky was author her own fate by treating her ex and her child in the way that she did.
So why the big article now? I really have no idea. Why do I return to the topic then? Well it's because of one quotation which gives me some unease - "There are those who believe Victoria has been unjustly treated. Among them is MP John Hemmings, who says her imprisonment is ‘ridiculously harsh sentencing for what was a minor technical breach of a court order’."
Attacks on judges
There used to be an axiom in football - the referee's decision is final. To go by what you see at football matches these days, that has long ceased to be the case. A good friend of mine from times past was a rugby league referee. He told me that at all levels of that game, the players, without exception, addressed him at all times as "sir". His decisions were not attacked, whether or not they were good ones. Of course, there would be days when his decisions were not perfect - after all, he is merely a human being. It was recognised, though, that someone had to have the final responsibility to make the decision and clearly that couldn't be one of the players.
I have grave reservations about publicly attacking or criticising decisions by judges. Do I always agree with them? Certainly not! Like any advocate, there are days I leave court shaking my head in puzzlement or exasperation. But I'm not prepared to make public pontifications about how shoddy a decision may be. Ultimately, the judge's decision has to be final. Someone has to put an end to the fractious toing and froing and that job goes to the judge. It definitely does not go to any politician!
The fact is that John Hemmings was not present at the trial and didn't hear all the evidence. It cannot be for him, therefore, to second guess what the judge should have decided. The reality is that the judge was in a much better position to form a view and did so. What's more, it was his job to do this and no one else's.
Update - it seems that the reason for this case reaching the press again is to do with Vicky Haigh's appeal against sentence. I haven't located the judgment yet but it was reported in the Telegraph by Christopher Booker. You can read it here.
Vicky Haigh - Christopher Booker
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Vicky Haigh, the latest
For those of you who haven't been following this story, Vicky Haigh is serving a prison sentence for breaching a court order that she have no contact with her oldest daughter. The order was made because two judges separately concluded that she had made up false allegations that the child's father had abused her and she had then sought to persuade the child to repeat these allegations.
I really can't see why this article has been published. There is no new material in it. Vicky was sentenced over six months ago now and this was reported at the time. The article itself is a masterly piece of fence sitting by the journalist. On the one hand there is a sentimental tone, apparently sympathetic to the plight of a mother separated from her child. On the other hand, there is no criticism of the original decisions by the court that Vicky was author her own fate by treating her ex and her child in the way that she did.
So why the big article now? I really have no idea. Why do I return to the topic then? Well it's because of one quotation which gives me some unease - "There are those who believe Victoria has been unjustly treated. Among them is MP John Hemmings, who says her imprisonment is ‘ridiculously harsh sentencing for what was a minor technical breach of a court order’."
Attacks on judges
There used to be an axiom in football - the referee's decision is final. To go by what you see at football matches these days, that has long ceased to be the case. A good friend of mine from times past was a rugby league referee. He told me that at all levels of that game, the players, without exception, addressed him at all times as "sir". His decisions were not attacked, whether or not they were good ones. Of course, there would be days when his decisions were not perfect - after all, he is merely a human being. It was recognised, though, that someone had to have the final responsibility to make the decision and clearly that couldn't be one of the players.
I have grave reservations about publicly attacking or criticising decisions by judges. Do I always agree with them? Certainly not! Like any advocate, there are days I leave court shaking my head in puzzlement or exasperation. But I'm not prepared to make public pontifications about how shoddy a decision may be. Ultimately, the judge's decision has to be final. Someone has to put an end to the fractious toing and froing and that job goes to the judge. It definitely does not go to any politician!
The fact is that John Hemmings was not present at the trial and didn't hear all the evidence. It cannot be for him, therefore, to second guess what the judge should have decided. The reality is that the judge was in a much better position to form a view and did so. What's more, it was his job to do this and no one else's.
Update - it seems that the reason for this case reaching the press again is to do with Vicky Haigh's appeal against sentence. I haven't located the judgment yet but it was reported in the Telegraph by Christopher Booker. You can read it here.
Vicky Haigh - Christopher Booker
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Friday, 1 June 2012
Contraception anybody? Or, if you're not married, how do you get your hands on his money?
I recently had my attention drawn to a case reported in 2010 about an unplanned pregnancy. Of course there are any number of these happening all the time. This one, however, ended up with the parents facing each other in the High Court.
DE v. AB
It's pretty hard to have sympathy for either parent here. As Baron J explained: " It would seem that the mother was convinced that she was in love and that the father's intentions were honourable. He, on the other hand, considered the relationship to be casual and merely sexual." Nothing too striking there then. Just another commonplace story of a naive mother and uncaring father, it would seem.
"The mother, once pregnant, was anxious to have the child whereas the father was shocked when he learned about the impending birth. He advised her to obtain a termination." And that's par for the course too.
Now there's an interesting freudian slip in the next line of the judgment, where Baron J, who was hearing the father's appeal against an order of a District Judge, refers to the mother as the wife - she wasn't! That's very important. She was entitled to be paid by the father solely for the benefit of their child - not in her own right. So what happened first, unsurprisingly, was an application to the CSA. It doesn't seem to have yielded very much though. Apparently less than £300 per month was being paid at the time the High Court was dealing with the father's appeal. Now I appreciate that plenty of parents would be delighted to receive child maintenance measured in the low hundreds each month but the other circumstances of the case rather change one's perspective on this.
The mother
Well, she had had a good job - she was 37 and had been earning £60,000 p.a. gross. Trouble is, she had lost that job and was evidently struggling to find a new one. Her mortgage, get this, had been £570,000 when she bought her house and she had increased it after losing her job and it now stood at £600,000. Interest only, the mortgage cost £30,000 p.a., equivalent to the first £42,000 of income in its entirety.
By the time of the appeal, the mother also had credit card debts of over £83,000 and overdrafts of almost £28,000. She had kept herself above water only with help from her family. For myself, I should have thought that bankruptcy would have come as a relief, if only she had been advised to petition for it.
The father
The father was 39 at the time of the appeal. He too had had a good job, from which he had been made redundant. The redundancy payment, in 2004, was over £950,000, but it was a little unclear whether this was net or gross. The father had a London house with a mortgage on it of £600,000. Use the redundancy money to pay off the mortgage? Nah - take a three year sabbatical from working instead! Then have unprotected sex with mother at the end of the period and presto! Furthermore, the father instead of paying off the mortgage, increased it to invest in a business! By the time of the appeal, it looked as if the business had effectively failed, there would be no capital return and father was looking for a job.
Good grief! It's not as if the parents weren't old enough to know better either. They were in their mid thirties when all this was going on. Despite the realities of the situation, both of them told the judge that they wanted to keep their respective houses, though Lord alone knows how the mortgages were supposed to be paid.
The application
The mother applied to the court for provision under Schedule 1 of the Children Act. Because she wasn't married to the father, she had no other claim in law. So what can the court order?
1. Maintenance, but only if the father (in this case) has income of more than £104,000 net p.a.
2. A lump sum, or several lump sums.
3. A transfer of property to the child or to the Applicant.
4. The settlement of property in trust for the child.
The whole point of this legislation is that it is not intended to do fairness between the parties - it is solely to make proper provision for a child. Unlike the Matrimonial Causes Act, there is no power to order the sale of property. In the context of this case, that's quite important.
So what happened? Well at first instance, the District Judge ordered:
1. Father to settle £250,000 on trust for the child for housing purposes. This would revert to the father when the child reaches 18;
2. Father to pay mother a lump sum of £85,000. £40,000 would repay her legal costs and the rest would go to reduce her debts.
Now the effect of this was that the father would have to sell his own house to be able to make the payment ordered. The court couldn't make an order for sale, but the order to make a settlement effectively did the same. The net proceeds of sale would amount to just £358,000, so the order would wipe most of his capital or put it beyond his reach for years to come. So he appealed.
To a limited extent he was successful. The High Court trimmed £45,000 off the total lump sum. This is how the High Court put it: "Assuming no further payment, the total sum which the father will have to pay from the £358,000-odd equity in his home is a total of £290,000. This will leave him with capital of £68,000 less his costs. That sum will provide him with a modest deposit for a flat for himself. Given his superior earnings and his current supposed wish to pursue work abroad, that, as I perceive it, is fair." (emphasis added).
So even when he was not married to the mother, the father is deprived of the use of the overwhelming majority of his capital for at least 16 years. He won't recover it until he himself is 55 years old. Still, unlike in a divorce case, he will at least be assured of recovering it one day. By contrast, the mother finds herself guaranteed a modest house to live in until she is about 52 or so and then she has to rehouse using only her own resources. Put it another way, she has 16 years or so to save up £250,000 to repay the father and given her saving habits up to now, that's more than a radical change of approach to life.
All this for want of a very basic precaution!
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
DE v. AB
It's pretty hard to have sympathy for either parent here. As Baron J explained: " It would seem that the mother was convinced that she was in love and that the father's intentions were honourable. He, on the other hand, considered the relationship to be casual and merely sexual." Nothing too striking there then. Just another commonplace story of a naive mother and uncaring father, it would seem.
"The mother, once pregnant, was anxious to have the child whereas the father was shocked when he learned about the impending birth. He advised her to obtain a termination." And that's par for the course too.
Now there's an interesting freudian slip in the next line of the judgment, where Baron J, who was hearing the father's appeal against an order of a District Judge, refers to the mother as the wife - she wasn't! That's very important. She was entitled to be paid by the father solely for the benefit of their child - not in her own right. So what happened first, unsurprisingly, was an application to the CSA. It doesn't seem to have yielded very much though. Apparently less than £300 per month was being paid at the time the High Court was dealing with the father's appeal. Now I appreciate that plenty of parents would be delighted to receive child maintenance measured in the low hundreds each month but the other circumstances of the case rather change one's perspective on this.
The mother
Well, she had had a good job - she was 37 and had been earning £60,000 p.a. gross. Trouble is, she had lost that job and was evidently struggling to find a new one. Her mortgage, get this, had been £570,000 when she bought her house and she had increased it after losing her job and it now stood at £600,000. Interest only, the mortgage cost £30,000 p.a., equivalent to the first £42,000 of income in its entirety.
By the time of the appeal, the mother also had credit card debts of over £83,000 and overdrafts of almost £28,000. She had kept herself above water only with help from her family. For myself, I should have thought that bankruptcy would have come as a relief, if only she had been advised to petition for it.
The father
The father was 39 at the time of the appeal. He too had had a good job, from which he had been made redundant. The redundancy payment, in 2004, was over £950,000, but it was a little unclear whether this was net or gross. The father had a London house with a mortgage on it of £600,000. Use the redundancy money to pay off the mortgage? Nah - take a three year sabbatical from working instead! Then have unprotected sex with mother at the end of the period and presto! Furthermore, the father instead of paying off the mortgage, increased it to invest in a business! By the time of the appeal, it looked as if the business had effectively failed, there would be no capital return and father was looking for a job.
Good grief! It's not as if the parents weren't old enough to know better either. They were in their mid thirties when all this was going on. Despite the realities of the situation, both of them told the judge that they wanted to keep their respective houses, though Lord alone knows how the mortgages were supposed to be paid.
The application
The mother applied to the court for provision under Schedule 1 of the Children Act. Because she wasn't married to the father, she had no other claim in law. So what can the court order?
1. Maintenance, but only if the father (in this case) has income of more than £104,000 net p.a.
2. A lump sum, or several lump sums.
3. A transfer of property to the child or to the Applicant.
4. The settlement of property in trust for the child.
The whole point of this legislation is that it is not intended to do fairness between the parties - it is solely to make proper provision for a child. Unlike the Matrimonial Causes Act, there is no power to order the sale of property. In the context of this case, that's quite important.
So what happened? Well at first instance, the District Judge ordered:
1. Father to settle £250,000 on trust for the child for housing purposes. This would revert to the father when the child reaches 18;
2. Father to pay mother a lump sum of £85,000. £40,000 would repay her legal costs and the rest would go to reduce her debts.
Now the effect of this was that the father would have to sell his own house to be able to make the payment ordered. The court couldn't make an order for sale, but the order to make a settlement effectively did the same. The net proceeds of sale would amount to just £358,000, so the order would wipe most of his capital or put it beyond his reach for years to come. So he appealed.
To a limited extent he was successful. The High Court trimmed £45,000 off the total lump sum. This is how the High Court put it: "Assuming no further payment, the total sum which the father will have to pay from the £358,000-odd equity in his home is a total of £290,000. This will leave him with capital of £68,000 less his costs. That sum will provide him with a modest deposit for a flat for himself. Given his superior earnings and his current supposed wish to pursue work abroad, that, as I perceive it, is fair." (emphasis added).
So even when he was not married to the mother, the father is deprived of the use of the overwhelming majority of his capital for at least 16 years. He won't recover it until he himself is 55 years old. Still, unlike in a divorce case, he will at least be assured of recovering it one day. By contrast, the mother finds herself guaranteed a modest house to live in until she is about 52 or so and then she has to rehouse using only her own resources. Put it another way, she has 16 years or so to save up £250,000 to repay the father and given her saving habits up to now, that's more than a radical change of approach to life.
All this for want of a very basic precaution!
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Tuesday, 20 March 2012
Designer Families 2 - Now that didn't take long, did it?
Family Law Week has just produced the judgment in the case I mentioned in an earlier blog - the Court of Appeal has decided an appeal by a father against the very limited contact he was permitted with his child who lived with her lesbian mother her mother's long term partner.
You can see the earlier blog here: Designer families - can they ever work
I ended that post by asking the question, do I need to change my advice to clients? Is it now the case that what parents decide should be the caring regime for a child prior to birth should become a key factor in how the court determines the appropriate order to be made in Children Act proceedings? Well now we know the answer - it's no! I can carry on just as before.
The report is now on bailii and is quite short and digestible - A v. B and another
The oddity of the case at appeal is that there was actually no appeal against the order - just the judgment, the reasons for the order. In other words, the father didn't take issue with the amount or frequency of the contact ordered for the present, what he was unhappy with was the implications of the judge's thinking for future increases in his involvement in his child's life. The Court of Appeal shared those concerns.
Firstly, the recent idea of Hedley J to think of parenting in terms of principal and secondary carers has already been discarded. Thorpe LJ says of this, "I would not endorse the concept of principal and secondary parents. It has the danger of demeaning the known donor and in some cases they may have an important role. In the present case some would say that the primary carer is the full-time nanny."
Secondly, it highlights the inherent weakness of limiting parenting to function or time spent. That really is the effect of that last sentence. It's the nanny who provides the majority of the hands on caring - how can we define the importance of a parent in terms of who picks up and drops off, who gets up in the middle of the night, who reads with the child and so forth? A good parent may well do all these things, but so, perhaps, does a good nanny!
Most importantly, for me at least, is the point about parents making their own plans before the child is conceived and then being forced to stick with them. Not so, says Thorpe LJ, and for me this is by far the most predictable element of the judgment - how could it be different? "I am cautious in reaction to Mr Howard's repeated submissions that great weight should be attached to adult autonomy and the plans that adults make for future relationships between the child and the relevant adults. Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy. B and C may have had the desire to create a two parent lesbian nuclear family completely intact and free from fracture resulting from contact with the third parent. But such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created." In other words, it's all about the welfare of the child, not the plans of his/her parents - and there's nothing revolutionary about that now is there?
One thing I found quite encouraging too was the Court's readiness to hear and allow an appeal even though it wasn't seeking a variation of the order itself, merely the reasoning behind it. Sometimes a judge can make the right decision but for the wrong reasons. However, that on its own won't be enough of a reason for appealing the decision. The key point in this case was that using the wrong reasoning was almost inevitably going to lead to complications for the future care of this child. That's why the appeal was both heard and successful.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
You can see the earlier blog here: Designer families - can they ever work
I ended that post by asking the question, do I need to change my advice to clients? Is it now the case that what parents decide should be the caring regime for a child prior to birth should become a key factor in how the court determines the appropriate order to be made in Children Act proceedings? Well now we know the answer - it's no! I can carry on just as before.
The report is now on bailii and is quite short and digestible - A v. B and another
The oddity of the case at appeal is that there was actually no appeal against the order - just the judgment, the reasons for the order. In other words, the father didn't take issue with the amount or frequency of the contact ordered for the present, what he was unhappy with was the implications of the judge's thinking for future increases in his involvement in his child's life. The Court of Appeal shared those concerns.
Firstly, the recent idea of Hedley J to think of parenting in terms of principal and secondary carers has already been discarded. Thorpe LJ says of this, "I would not endorse the concept of principal and secondary parents. It has the danger of demeaning the known donor and in some cases they may have an important role. In the present case some would say that the primary carer is the full-time nanny."
Secondly, it highlights the inherent weakness of limiting parenting to function or time spent. That really is the effect of that last sentence. It's the nanny who provides the majority of the hands on caring - how can we define the importance of a parent in terms of who picks up and drops off, who gets up in the middle of the night, who reads with the child and so forth? A good parent may well do all these things, but so, perhaps, does a good nanny!
Most importantly, for me at least, is the point about parents making their own plans before the child is conceived and then being forced to stick with them. Not so, says Thorpe LJ, and for me this is by far the most predictable element of the judgment - how could it be different? "I am cautious in reaction to Mr Howard's repeated submissions that great weight should be attached to adult autonomy and the plans that adults make for future relationships between the child and the relevant adults. Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy. B and C may have had the desire to create a two parent lesbian nuclear family completely intact and free from fracture resulting from contact with the third parent. But such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created." In other words, it's all about the welfare of the child, not the plans of his/her parents - and there's nothing revolutionary about that now is there?
One thing I found quite encouraging too was the Court's readiness to hear and allow an appeal even though it wasn't seeking a variation of the order itself, merely the reasoning behind it. Sometimes a judge can make the right decision but for the wrong reasons. However, that on its own won't be enough of a reason for appealing the decision. The key point in this case was that using the wrong reasoning was almost inevitably going to lead to complications for the future care of this child. That's why the appeal was both heard and successful.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Monday, 20 February 2012
Designer families - can they ever work?
Two recent cases have brought before the courts what you might term designer families. The more recent of these is awaiting a decision of the Court of Appeal, as reported by the Telegraph here:
Lesbian couple and the gay father
and concerns the care of a baby born to one of a lesbian couple, a homosexual friend being the father.
The earlier one, which has been troubling Hedley J for some little time, involves a homosexual couple and a lesbian couple and the care of two little girls whose father is one of the homosexuals.
P and L (1)
P and L (2)
Both these cases involve unconventional families, by which I mean that convention hitherto has meant one father, one mother and their various children. Of course it could be argued that statistically there is now a new, additional convention, namely two separated parents, two step parents and their children by previous relationships and possibly by the current one. However interpreted, they are defined by heterosexual relationships of varying permanence or duration.
Doing family differently
These two cases, however, demonstrate couples who are in settled long term relationships but, being same sex, cannot biologically produce children. Some external input is needed for this to happen and so a rather more planned approach has to be taken. In these two cases, the lesbian couple, when planning to start a family, decided that rather than go down the route of anonymous sperm donor, they wanted to know the father and for the father to have some sort of involvement in the child's life. Where the problems have arisen is that the fathers have a different version of what was agreed or expected.
I can't say that I blame the parties - to insist on reaching a written agreement before arranging the pregnancy seems even more calculating than entering into a prenuptial agreement. What's more, it couldn't be binding in any legal sense because a court being asked to exercise its Children Act powers in relation to such a child can and will only make orders which are in the child's best interests, regardless of what its parents may have previously agreed.
The worst form of equality?
Tragically, it seems that just as with heterosexual parents, same sex parents can also act according to their own preconceptions and wishes and neglect the child's best interests. ML and another v. RW and another, the Hedley J case, seems to have been particularly difficult. Here we have two girls, aged 10 and 6. A lesbian couple of longstanding and in a civil partnership sought a homosexual father for the children they planned. They intended that person to have involvement in their children's lives. They found a homosexual couple, also of longstanding, one of whom would be the biological father of the children. After some years, and the birth of the two children, the relationship between the couples fell apart and as things are now, the person sorting out contact has described the older girl as being very disturbed indeed by how things now are between the adults in her life.
"I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P." (my emphasis).
Equal inability to prioritise a child's needs is not an equality to strive after!
How to plan the new family structure
The judge describes the adults as being intelligent professional people. Perhaps the key part of his first judgment is as follows:
"As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected."
In his second judgment, Hedley J describes the family planning process in these terms: "The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between."
Sadly, contact between the second couple and the older child had, by the time of this hearing, broken down completely. The judge exhorted the adults, " Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role."
In his second judgment he gives guidance to those contemplating and planning an alternative family structure:
"Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties."
And how not to!
You see, what is clear both from this case, and the more recent one reported in the Telegraph, is that alternative families are still trying to force themselves into the mould of traditional families. Hedley J describes the primary parents this way - " they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents."
The case reported in the Telegraph looks very much like a rerun of the Hedley case in some ways. It involves " highly-paid professionals living in central London." The father's counsel has exhorted the court against ""importing traditional or stereotypical models", which shouldn't be too difficult, given Hedley J's comments. By contrast, the mother's counsel is recorded as saying,
"It is right that that agreement was reached; the court has to show more than lipservice to it and must give it considerable weight, otherwise there's no point having such an agreement."
"Notwithstanding their sexuality and that they acknowledge to that extent that they are an 'alternative family', the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family."
"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy."
"Their choice of family life for their child should be respected."
A new and exclusive test for alternative families?
So on the Hedley test, there is a stage to go through in disputes involving alternative family structures which just doesn't exist with the conventional models - what did the parents agree would be the involvement of the various adults?
So here is the key question for debate - to what extent should parents be entitled to plan and determine exactly what family structure should be provided for their children, where they are dependent on an outsider to achieve that family? And how far should an agreement made prior to a child's birth determine the nature and extent of the relationship he/she may have with a biological parent?
For years I have advised clients that there's no such thing as legally binding or final agreement about child care arrangements, as a court will only ever order what is in the child's best interests, when objectively viewed. Do I need to change that advice?
Lesbian couple and the gay father
and concerns the care of a baby born to one of a lesbian couple, a homosexual friend being the father.
The earlier one, which has been troubling Hedley J for some little time, involves a homosexual couple and a lesbian couple and the care of two little girls whose father is one of the homosexuals.
P and L (1)
P and L (2)
Both these cases involve unconventional families, by which I mean that convention hitherto has meant one father, one mother and their various children. Of course it could be argued that statistically there is now a new, additional convention, namely two separated parents, two step parents and their children by previous relationships and possibly by the current one. However interpreted, they are defined by heterosexual relationships of varying permanence or duration.
Doing family differently
These two cases, however, demonstrate couples who are in settled long term relationships but, being same sex, cannot biologically produce children. Some external input is needed for this to happen and so a rather more planned approach has to be taken. In these two cases, the lesbian couple, when planning to start a family, decided that rather than go down the route of anonymous sperm donor, they wanted to know the father and for the father to have some sort of involvement in the child's life. Where the problems have arisen is that the fathers have a different version of what was agreed or expected.
I can't say that I blame the parties - to insist on reaching a written agreement before arranging the pregnancy seems even more calculating than entering into a prenuptial agreement. What's more, it couldn't be binding in any legal sense because a court being asked to exercise its Children Act powers in relation to such a child can and will only make orders which are in the child's best interests, regardless of what its parents may have previously agreed.
The worst form of equality?
Tragically, it seems that just as with heterosexual parents, same sex parents can also act according to their own preconceptions and wishes and neglect the child's best interests. ML and another v. RW and another, the Hedley J case, seems to have been particularly difficult. Here we have two girls, aged 10 and 6. A lesbian couple of longstanding and in a civil partnership sought a homosexual father for the children they planned. They intended that person to have involvement in their children's lives. They found a homosexual couple, also of longstanding, one of whom would be the biological father of the children. After some years, and the birth of the two children, the relationship between the couples fell apart and as things are now, the person sorting out contact has described the older girl as being very disturbed indeed by how things now are between the adults in her life.
"I felt, as she spoke me, the horrendous tangle of emotion and conflict that exists between these adults and saw the reality of the way in which their agreement to have P has resulted in such misery for her. The misery is not because of the way in which she was created, it is because these adults and their failure to manage their own conflicting feelings, reactions and personal baggage have handed over the responsibility for coping with the mess to P." (my emphasis).
Equal inability to prioritise a child's needs is not an equality to strive after!
How to plan the new family structure
The judge describes the adults as being intelligent professional people. Perhaps the key part of his first judgment is as follows:
"As I have thought about this case, I have tried hard to see whether there are any other concepts than that of mother, father and primary carer, all conventional concepts in conventional family cases. The best that I have achieved, and I confess to having found it helpful in thinking about this case, is to contemplate the concept of principal and secondary parenting. The reason why this case is not equivalent to a separated parent is that there was a clear agreement that the respondents would do the principal parenting and that they would provide the two-parent care to these children. The second respondent clearly believes that her role in this regard has been brought into question, and it is certainly my view that her role in the concept of principal parenting, as one of the two principal parents, needs to be clearly affirmed and respected."
In his second judgment, Hedley J describes the family planning process in these terms: "The difficulty is that there are really no restraints on what parties can choose to agree should be their respective roles. At one extreme parties freely agree that the male role will be limited to identity which need not necessarily involve any direct contact at all. At the other, a woman, particularly if single, may seek an arrangement closely aligned to an involved but separated father typical of a traditional arrangement - and, of course, anything in between."
Sadly, contact between the second couple and the older child had, by the time of this hearing, broken down completely. The judge exhorted the adults, " Undoubtedly, the best route for these children is one that only the four adults in their life can deliver. This involves them re-reflecting over the last 12 years in the light of all that is said and has been said in the course of this hearing and seeking to recover the concepts with which, as I found it, they set out, namely a clear acknowledgement that the principal parenting role, the two parent role, if you like, belongs to the respondents, but the applicants have a real, albeit secondary, parenting role."
In his second judgment he gives guidance to those contemplating and planning an alternative family structure:
"Accordingly the only guidance that I feel able to give is threefold: first to stress the importance of agreeing the future roles of the parties before the first child is born; secondly, to warn against the use of stereotypes from traditional family models and in particular to resist the temptation to squeeze a given set of facts to fit such a model; and thirdly, to provide a level of contact whose primary purpose is to reflect the role that either has been agreed or has been discerned from the conduct of the parties."
And how not to!
You see, what is clear both from this case, and the more recent one reported in the Telegraph, is that alternative families are still trying to force themselves into the mould of traditional families. Hedley J describes the primary parents this way - " they feel that any contact order beyond their proposal is an invasion of the life of the nuclear family. In the traditional model they would have a point; that is why grandparents and other relatives usually need the permission of the court to apply for contact. But they do not have a nuclear family in the traditional sense; their model does not encompass what these parties chose to agree and do in this case even though the women are and must remain the principal parents."
The case reported in the Telegraph looks very much like a rerun of the Hedley case in some ways. It involves " highly-paid professionals living in central London." The father's counsel has exhorted the court against ""importing traditional or stereotypical models", which shouldn't be too difficult, given Hedley J's comments. By contrast, the mother's counsel is recorded as saying,
"It is right that that agreement was reached; the court has to show more than lipservice to it and must give it considerable weight, otherwise there's no point having such an agreement."
"Notwithstanding their sexuality and that they acknowledge to that extent that they are an 'alternative family', the mother and her partner hold very traditional views of family life and would not have chosen to bring a child into anything other than an intact, two-parent, family."
"The ideal upbringing for a child is a stable home in which the parents love each other and had together chosen to bring a child into the world. This is the upbringing which the mother and her partner always wanted to create for this little boy."
"Their choice of family life for their child should be respected."
A new and exclusive test for alternative families?
So on the Hedley test, there is a stage to go through in disputes involving alternative family structures which just doesn't exist with the conventional models - what did the parents agree would be the involvement of the various adults?
So here is the key question for debate - to what extent should parents be entitled to plan and determine exactly what family structure should be provided for their children, where they are dependent on an outsider to achieve that family? And how far should an agreement made prior to a child's birth determine the nature and extent of the relationship he/she may have with a biological parent?
For years I have advised clients that there's no such thing as legally binding or final agreement about child care arrangements, as a court will only ever order what is in the child's best interests, when objectively viewed. Do I need to change that advice?
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Thursday, 2 February 2012
Here we go round the mulberry bush
Question - How do you meet your commitment to reduce child poverty in the UK? ("The coalition government has pledged to support families and maintain the goal of ending child poverty in the UK by 2020." BBC report 20 May 2010)
Answer - you charge parents a fee and a percentage in order for them to secure maintenance from absent parents. Simples!
The news from the Commons last night was the reversal of the Lords amendments to the legislation which will mean that applicants for child support to the CSA will have to pay an upfront fee of up to £100 for making the application. There will also be a percentage charge of 9-12% of the maintenance collected. The justification advanced for this is that people should be encouraged to make their own agreements as to the payment of maintenance. The problem with this is that it expresses a profound ignorance of how we came to have the CSA in the first place.
Now for some leading politicians, this ignorance is understandable if not excusable. The first Child Support Act was passed on 25 July 1991. At that time, David Cameron was 24 years old, Nick Clegg was also 24 years old and George Osborne was just 19! However, it's actually Ian Duncan Smith who has responsibility for the Welfare Reform Bill which is intended to enact the present changes and he was 37 in 1991. So why doesn't he remember what was going on then? Sure he was first elected the following year, but wasn't he keeping tabs on the politics of the day? The Act was easily controversial enough to merit consideration and being remembered for future reference.
Before 1991, parents could make their own agreements. They routinely did so. But the Conservative government of the day decided that parental agreements and even court orders, made by consent or otherwise, simply weren't producing enough maintenance and the state was being called upon to make up the shortfall. Hence the CSA and its formulae. Now the Conservative led government of the day has decided that we can safely go back to the old arrangement of people deciding for themselves, with an agency to resolve any disputes. Not so very different from the system which existed prior to 1991, just without the flexibility (or uncertainty!) of the courts.
Would anyone like to start a sweepstake on how long it is before manifest deficiencies become apparent in this brave new world?
POST SCRIPT newbiscuit.com has just blogged about the Welfare Reform Bill - you really need to read it!
newsbiscuit benefit caps
Answer - you charge parents a fee and a percentage in order for them to secure maintenance from absent parents. Simples!
The news from the Commons last night was the reversal of the Lords amendments to the legislation which will mean that applicants for child support to the CSA will have to pay an upfront fee of up to £100 for making the application. There will also be a percentage charge of 9-12% of the maintenance collected. The justification advanced for this is that people should be encouraged to make their own agreements as to the payment of maintenance. The problem with this is that it expresses a profound ignorance of how we came to have the CSA in the first place.
Now for some leading politicians, this ignorance is understandable if not excusable. The first Child Support Act was passed on 25 July 1991. At that time, David Cameron was 24 years old, Nick Clegg was also 24 years old and George Osborne was just 19! However, it's actually Ian Duncan Smith who has responsibility for the Welfare Reform Bill which is intended to enact the present changes and he was 37 in 1991. So why doesn't he remember what was going on then? Sure he was first elected the following year, but wasn't he keeping tabs on the politics of the day? The Act was easily controversial enough to merit consideration and being remembered for future reference.
Before 1991, parents could make their own agreements. They routinely did so. But the Conservative government of the day decided that parental agreements and even court orders, made by consent or otherwise, simply weren't producing enough maintenance and the state was being called upon to make up the shortfall. Hence the CSA and its formulae. Now the Conservative led government of the day has decided that we can safely go back to the old arrangement of people deciding for themselves, with an agency to resolve any disputes. Not so very different from the system which existed prior to 1991, just without the flexibility (or uncertainty!) of the courts.
Would anyone like to start a sweepstake on how long it is before manifest deficiencies become apparent in this brave new world?
POST SCRIPT newbiscuit.com has just blogged about the Welfare Reform Bill - you really need to read it!
newsbiscuit benefit caps
Blog Disclaimer: Nothing in http://www.blogger.com/www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Tuesday, 24 January 2012
Discretion is the better part of family litigation
There's nothing new about the concept of privacy in family proceedings. It crops up with some regularity both in relation to family finances and children proceedings. My attention was drawn to this article in the Northampton Chronicle:
Northampton Chronicle
As far as I'm concerned, privacy is just common sense in family matters. Few cases are of genuine broader interest to the public or to lawyers. Any number of people think that their family dispute is out of the ordinary because of their opponent's behaviour, but sad to say, after years in family litigation, very little I encounter has the capacity to surprise me. Yes, I can be disappointed by how clients and their former spouses treat each other but it very rarely comes as any sort of shock.
There's that old saying, don't wash your dirty linen in public. In the family law arena, it has legal force, and with good reason. People say and write things in family cases which years later they are almost certain to regret bitterly. Worse, they can say things which cause the deepest imaginable embarrassment and hurt to their children.
The most notorious case of this type occurred last year and has so far resulted in prison sentences for two people. Vicky Haigh was publicly "outed" by a High Court judgment last August - you can read about it here, for example:
Daily Mirror Vicky Haigh
Most recently, in December last year, Vicky has been imprisoned for three years for breaching an injunction which prevented her from having any contact with her daughter, presumably because the court decided that the way she behaved with her daughter was likely to cause harm to the child . One of Vicky's supporters, Elizabeth Watson, was imprisoned at the time of the hearings in August, as reported here:
Elizabeth of the family Watson
So the message here could not be clearer - the Court will do whatever it has to in order to protect the child. And one of the key interests of the child is not to have his/her privacy violated at the whim of one or other parent. Where there are individuals who refuse to comply with court orders, unfortunately the courts will have to exercise their powers to insist on compliance. Whereas adults have some sort of control over their own destinies, children are uniquely vulnerable and so it is only right that first of all their interests should be foremost and secondly, that orders to promote their welfare should be enforced.
Northampton Chronicle
As far as I'm concerned, privacy is just common sense in family matters. Few cases are of genuine broader interest to the public or to lawyers. Any number of people think that their family dispute is out of the ordinary because of their opponent's behaviour, but sad to say, after years in family litigation, very little I encounter has the capacity to surprise me. Yes, I can be disappointed by how clients and their former spouses treat each other but it very rarely comes as any sort of shock.
There's that old saying, don't wash your dirty linen in public. In the family law arena, it has legal force, and with good reason. People say and write things in family cases which years later they are almost certain to regret bitterly. Worse, they can say things which cause the deepest imaginable embarrassment and hurt to their children.
The most notorious case of this type occurred last year and has so far resulted in prison sentences for two people. Vicky Haigh was publicly "outed" by a High Court judgment last August - you can read about it here, for example:
Daily Mirror Vicky Haigh
Most recently, in December last year, Vicky has been imprisoned for three years for breaching an injunction which prevented her from having any contact with her daughter, presumably because the court decided that the way she behaved with her daughter was likely to cause harm to the child . One of Vicky's supporters, Elizabeth Watson, was imprisoned at the time of the hearings in August, as reported here:
Elizabeth of the family Watson
So the message here could not be clearer - the Court will do whatever it has to in order to protect the child. And one of the key interests of the child is not to have his/her privacy violated at the whim of one or other parent. Where there are individuals who refuse to comply with court orders, unfortunately the courts will have to exercise their powers to insist on compliance. Whereas adults have some sort of control over their own destinies, children are uniquely vulnerable and so it is only right that first of all their interests should be foremost and secondly, that orders to promote their welfare should be enforced.
Friday, 20 January 2012
It just doesn't work this way - thank heavens!
Why-Ill-NEVER-let-exs-new-girlfriend-meet-son.
Just reading the title of this article is enough to raise the blood pressure. The author is Kelly Rose Bradford and you can find a list of her articles for the Daily Mail at this link:
Kelly Rose Bradford Daily Mail articles
All very enlightening and moderate, I'm sure. It seems that Kelly is a freelance journalist who writes for the Express as well as the Mail - now there's a surprise! On her own website she describes herself thus: " Wearing my serious hat, I produce well-researched, thought-provoking, informative copy on health, pregnancy and birth, parenting and women's issues." So which of these is the best descriptive term for her most recent article?
Option 1 - Well researched. As this is just a rant about her own personal prejudices, research hasn't entered into the equation. Nothing has been researched at all. She has reacted out of her own apparently ungovernable emotions. That has to be a fail.
Option 2 - thought-provoking. Well, 1218 people have commented on the article as I go to press, and that in the space of only just over 24 hours. Something has been provoked right enough. As many of the replies are forceful but reasoned, perhaps thought has been provoked. The trouble is that I rather think that it would be equally accurate to describe it as "red mist inducing", where thoughts are certainly provoked but not necessarily constructive ones!
Option 3 - informative. This falls foul of the same issue as option 1 - it's all entirely subjective. It informs us of Ms. Bradford's prejudices but very little else. An informative article would perhaps tell us whether in the wider community such a stance is considered acceptable. Perhaps it would tell us how courts view this sort of reason for limiting contact with fathers (as it is most usually fathers who are affected). No, it's just Ms. Bradford's take on what her son's father can and cannot do. It doesn't even explain how it is that she believes that she has the right to dictate to her ex.
So does this article have any value? Actually, it goes a little way to restoring my faith in human nature. If you list the comments by approval rating, you find that all the top rated comments, entirely without exception, strongly take issue with our Kelly. They find her actions and opinions obnoxious. Conversely, the comments which are worst rated are all approving of the article. The switch from disapproval to approval comes when the comments switch from supporting Kelly's stance to condemning it.
So what are the realities here? Evidently the great British public simply doesn't share this restrictive and controlling approach. What Kelly doesn't get, and most other people do, is that her son is not her possession. I don't know why in this age of equality it remains the case that so many mothers see the children as theirs alone and not as shared with their fathers.
In my experience, courts firmly take the view that whereas it is appropriate to give a little time to allow children to get used to the new reality of separated parents before getting to know a parent's new partner, there is going to come a time when the new partner will have to come into the equation. Just look at it from a practical perspective - let's say that Dad now lives with someone else. In the dead of winter, if the children are not to be allowed to come into contact with the new lady, who is supposed to vacate their home when contact is taking place? Does Dad have to take the children out on a miserable day, or does his new partner have to make herself scarce? And who has the right to force this choice anyway? Why does Mum think that she is allowed to call the shots? The truth is that she isn't and if push comes to shove, a court won't permit her to.
That of course is the fatal flaw in Kelly's article. She adamantly insists that there is no way she will allow it. "There is just no way I am ever going to hand my little boy over every other weekend to play happy families with someone who is nothing to do with him." But what if a court orders her to? Is she going to disobey and find herself the subject of court sanctions? How undignified and immature would that be? Perhaps she needs to go down that route simply to get the benefit of the Separated Parent Information Programme (http://www.separatedparentsinformationprogramme.com/) - it certainly looks like she needs some serious help in getting a realistic view of how to do things.
After all, it's not about her - it's about what's best for her son. His voice is not even considered by her and his happiness is not even mentioned. The reason for her ultimatum is her emotional demands and it has nothing to do with what's best for the child. It's as well that the only standard the court applies is the child's welfare and that is why Kelly is ultimately doomed to fail. There's no reason from the child's perspective that he should be excluded from any contact with his Dad's new partner, so a court won't forbid it. However, it's clearly best for him to continue his relationship with his Dad, so a court will certainly make orders to ensure that he can.
Just reading the title of this article is enough to raise the blood pressure. The author is Kelly Rose Bradford and you can find a list of her articles for the Daily Mail at this link:
Kelly Rose Bradford Daily Mail articles
All very enlightening and moderate, I'm sure. It seems that Kelly is a freelance journalist who writes for the Express as well as the Mail - now there's a surprise! On her own website she describes herself thus: " Wearing my serious hat, I produce well-researched, thought-provoking, informative copy on health, pregnancy and birth, parenting and women's issues." So which of these is the best descriptive term for her most recent article?
Option 1 - Well researched. As this is just a rant about her own personal prejudices, research hasn't entered into the equation. Nothing has been researched at all. She has reacted out of her own apparently ungovernable emotions. That has to be a fail.
Option 2 - thought-provoking. Well, 1218 people have commented on the article as I go to press, and that in the space of only just over 24 hours. Something has been provoked right enough. As many of the replies are forceful but reasoned, perhaps thought has been provoked. The trouble is that I rather think that it would be equally accurate to describe it as "red mist inducing", where thoughts are certainly provoked but not necessarily constructive ones!
Option 3 - informative. This falls foul of the same issue as option 1 - it's all entirely subjective. It informs us of Ms. Bradford's prejudices but very little else. An informative article would perhaps tell us whether in the wider community such a stance is considered acceptable. Perhaps it would tell us how courts view this sort of reason for limiting contact with fathers (as it is most usually fathers who are affected). No, it's just Ms. Bradford's take on what her son's father can and cannot do. It doesn't even explain how it is that she believes that she has the right to dictate to her ex.
So does this article have any value? Actually, it goes a little way to restoring my faith in human nature. If you list the comments by approval rating, you find that all the top rated comments, entirely without exception, strongly take issue with our Kelly. They find her actions and opinions obnoxious. Conversely, the comments which are worst rated are all approving of the article. The switch from disapproval to approval comes when the comments switch from supporting Kelly's stance to condemning it.
So what are the realities here? Evidently the great British public simply doesn't share this restrictive and controlling approach. What Kelly doesn't get, and most other people do, is that her son is not her possession. I don't know why in this age of equality it remains the case that so many mothers see the children as theirs alone and not as shared with their fathers.
In my experience, courts firmly take the view that whereas it is appropriate to give a little time to allow children to get used to the new reality of separated parents before getting to know a parent's new partner, there is going to come a time when the new partner will have to come into the equation. Just look at it from a practical perspective - let's say that Dad now lives with someone else. In the dead of winter, if the children are not to be allowed to come into contact with the new lady, who is supposed to vacate their home when contact is taking place? Does Dad have to take the children out on a miserable day, or does his new partner have to make herself scarce? And who has the right to force this choice anyway? Why does Mum think that she is allowed to call the shots? The truth is that she isn't and if push comes to shove, a court won't permit her to.
That of course is the fatal flaw in Kelly's article. She adamantly insists that there is no way she will allow it. "There is just no way I am ever going to hand my little boy over every other weekend to play happy families with someone who is nothing to do with him." But what if a court orders her to? Is she going to disobey and find herself the subject of court sanctions? How undignified and immature would that be? Perhaps she needs to go down that route simply to get the benefit of the Separated Parent Information Programme (http://www.separatedparentsinformationprogramme.com/) - it certainly looks like she needs some serious help in getting a realistic view of how to do things.
After all, it's not about her - it's about what's best for her son. His voice is not even considered by her and his happiness is not even mentioned. The reason for her ultimatum is her emotional demands and it has nothing to do with what's best for the child. It's as well that the only standard the court applies is the child's welfare and that is why Kelly is ultimately doomed to fail. There's no reason from the child's perspective that he should be excluded from any contact with his Dad's new partner, so a court won't forbid it. However, it's clearly best for him to continue his relationship with his Dad, so a court will certainly make orders to ensure that he can.
Monday, 9 January 2012
Judges and children – AJ v. JJ and others [2011] EWCA Civ 1448
It sounds like a definition of people you should never work with. Animals are less of a problem!
Actually, I raise this as a topic because one of the oddities of Children Act proceedings is that judges very rarely meet with the children themselves. It seems strange that the person who has responsibility for deciding what is the best living arrangement for a child doesn't actually meet with that child face to face. I have known parents bring their child to court on the first occasion in the expectation that the judge will talk to him/her. It never happens that way.
Well why not? Even for adults, court hearings are traumatic and stressful events. Imagine the effect on children. They would come into an adult environment, burdened with the hopes and expectations of both parents and terrified of letting either one of them down. They would be afraid of the lash back from the disappointed parent once the court hearing was over. Given that the entire ethos of Children Act proceedings is to promote the welfare of the child, imposing stress and distress on the child would be to do the exact opposite of what the court is there for. So in general terms, children are spoken to by the Children and Family Reporter, who then reports back to the court what they had to say and what key information has been communicated by them.
However, the Court of Appeal has now suggested to judges that they may need to be rather more flexible. It arises from a case in which a mother had brought her children to England from Poland for a prearranged holiday. At the end of the holiday, she failed to return the children, despite the fact that the Polish court had ordered custody to the father years before. Shortly after withholding the children's return, she applied to the Polish court for a change of custody. The father, understandably, made an application under the Hague Convention for the immediate return of the children to Poland. The Polish court was seised of proceedings so there really seemed to be no defence to this.
At first instance, the High Court judge did indeed order their immediate return. The mother appealed. She argued that the judge had wrongly rejected an application for the children to be joined as parties on the basis of their objection to returning. The second limb of the appeal was that the judge should have taken the initiative and should have decided to see the children himself. This was because the children were being said to object very strongly to their return to Poland.
The Court of Appeal decided that the second ground of appeal was made out. The judge should of his own initiative have decided to meet with these children. However, the clear guidance of the Court of Appeal was that the main purpose of the meeting was to enable the children to understand why the decision was being made and how their worries about returning had been taken into account. The judge would have the opportunity to see for himself whether the children objected in the way described to him. However, that was not the prime intention.
Importantly, the court said, "The Judge's authority can be an influence for acceptance."
"These children understandably felt themselves to be vulnerable and lost in a complex legal landscape. They needed to understand that the proceedings in this jurisdiction were brought under an international instrument and were essentially summary in character. They needed to understand that they were habitually resident in Poland and that accordingly the Polish court had primary jurisdiction under Article 8 of Brussels 2 Revised. They needed to understand that any profound investigation of their future would be determined by the paramount consideration of their welfare and that the task of assessing that was for the Polish Judge. They needed to understand that their mother had initiated that process during the course of the summer holiday. They needed to understand that a summary return order might be a transient order dependent on the outcome of the mother's application for custody and relocation. They needed to be informed of the fundamental shift in their mother's case elicited by the Judge's questions."
In other words, the court didn't really question the merits of the decision itself but it was concerned that quite needlessly there might be serious disruption and distress for the children where, if someone took the trouble to explain to them just what was going on, that could all be avoided. Nightmare scenarios of protesting teenagers being bundled onto aeroplanes against their will could and should be foreseen and steps taken to prevent them happening. The court was saying that it was the judge who had the responsibility to make sure that this conversation happened. It's going to be extremely interesting to see what effect this may have on judges meeting children in the future.
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