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.
Showing posts with label contact. Show all posts
Showing posts with label contact. Show all posts
Friday, 6 July 2012
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.
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.
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