Courts - UK - Weasel words
'The system has serious faults'
A growing number of fathers are protesting that
family courts are not giving them a fair deal. Lord Justice
Wall tells Clare Dyer that many judges feel frustrated too
Last week Channel 4's political award
went to Dr David Kelly, the viewers' choice for "the
person who made the most important contribution to British
politics in 2003". The runners-up were Robin Cook, Tony
Blair, George Galloway, Benjamin Zephaniah - and David Chick.
Chick was the 37-year-old father who spent
six days in the news last November, dressed as Spiderman atop
a 100ft crane, demanding access to his daughter and causing
traffic chaos around Tower Bridge in London. Viewers nominated
him for "highlighting the scandalous way in which fathers
get treated by the courts over contact with their children".
Other fathers have scaled bridges and two dressed as Batman
and Robin climbed the ramparts of the Royal Courts of Justice
in central London. But are the judges inside taking any notice?
These militant fathers may not be making much difference to
judges' decisions in individual cases, but their antics are
creating pressure to reform the system. "They're putting
it very much at the top of the political agenda," says
appeal court judge Sir Nicholas Wall. "I think the government
is realising that this is an issue that has to be addressed."
Fathers' pressure groups accuse the courts of being anti-men
and biased in favour of mothers. In fact, the law itself is
neutral, but the reality when most couples separate is that
children remain with their mother. It's the system for ensuring
that fathers stay in their children's lives that even the
judges who administer it admit is deeply flawed.
As Wall, who was promoted to the court of appeal last month
after 11 years as a high court family division judge, noted
in a recent judgment: "The court system for dealing with
contact disputes has serious faults. It tends to entrench
parental attitudes rather than encouraging them to change.
It is ill adapted to deal with the difficult human dilemmas
involved, notably when it comes to the enforcement of its
In the US and Canada, separating parents are presented with
sample parenting plans giving both of them generous time with
the children. The system makes it clear that they are expected
to put them into force. Family court psychologists work to
defuse anger and hurt from failed relationships, to clear
the way for future cooperation. And they make sure that parents
are aware of the legacy of emotional damage they may bequeath
to their children by prolonging their battles long after the
On this side of the Atlantic, parents get no such help or
information. Yet, as Wall points out, "Post-separation
parenting is fiendishly difficult, and no one, I think, is
really prepared for it. You don't know what's hitting you
when you separate."
Too many parents succumb to the temptation to use their children
as weapons against the partner who has disappointed them.
"They're fighting all the wrongs, imagined or otherwise,
that occurred during the relationship. And the children are
simply the ammunition," says Wall.
A mother who wants to get back at her ex or simply write him
out of her life can flout contact orders, knowing there will
probably be no comeback. Prison and fines are the only remedies
available to judges, who are understandably reluctant to use
Faced with posses of unhappy dads picketing their homes at
weekends, judges are spelling out their own frustrations at
the system's limitations. In an appeal court judgment last
month, Sir Matthew Thorpe described an unmarried father's
battle to see his six-year-old daughter as "a paradigm"
illustrating fathers' indictment of the family courts system.
A recorder (part-time judge) had dismissed the father's application
for contact with the daughter he had not seen for more than
a year, refused to allow a psychological assessment of the
child, and barred the father from making another court application
for 12 months without the court's permission. The mother,
with a new husband and baby twins, wanted to exclude her ex-partner
from her life and had communicated her hostility to her daughter,
who said she didn't want to see her father.
The recorder's decision was "little short of perverse"
and the sort of outcome that attracted justified criticism,
said Thorpe. "Whatever the difficulties, however scant
the prospects of success, the courts must not relent in pursuit
of the restoration of what had been a natural relationship
between father and daughter," he added, while lamenting
the "very little resources" the judges could call
on to support their endeavours. The appeal court judges lifted
the ban on further court applications and ordered a psychological
assessment to investigate whether contact could be re-established.
Wall shares their frustration at not being able to do more.
"We need more facilities to assist people who have reached
that point of gridlock," he says.
He chaired a committee which, two years ago, recommended extra
powers for judges to enforce contact orders, including community
service orders, probation orders with a condition of treatment,
and powers to refer parents to a psychologist. "But that
would require legislation and I'm told there isn't a slot.
That is the one area I feel most disappointed about.
"That is the point where the fathers' movement becomes
strong. They say, 'Well, you say you're supporting us and
you say fathers are vitally important, but when it comes to
enforcing contact, what do you do? You roll over and do nothing
about it.' "
One of the reasons, he says, for publishing his judgments
in two recent cases where he took the unusual step of transferring
children from maternal to paternal care was "because
they were cases where it was possible to rectify the situation
by action - taking children away from an abusive parent who
was abusing them because she was alienating the children from
The latest case in which he took this rare step is a heart-rending
tale of two children, a boy of 11 and a girl of nine, at the
centre of what their guardian for the court case described
as a "virtual state of war" between father and mother.
The mother, a teacher, "distorted and misinterpreted
entirely innocent activities", Wall says in his judgment,
convincing herself that the father's behaviour with their
daughter was "sexually inappropriate". The girl,
who had been fond of her father, a hospital consultant, had
turned against him. Wall called in the National Youth Advocacy
Service, which appointed an independent social worker to represent
the children's interests in the court case. She recommended
a move to their father's home. The judge at first refused,
but later agreed after the mother persisted with her allegations.
By the time the case came back to court a year later, the
parents, who lived near each other, had worked out their own
deal, which meant the children spending equal time living
with each. Wall formalised it by making a 50-50 "shared
residence" order, which, the relieved son remarked, left
his parents "nothing to fight about". The children
are now thriving, though their parents still barely speak.
Some pressure groups argue that equal parenting time should
be the norm, but the courts are still wary of making shared-residence
orders. The received wisdom is that children need a single
place that they can call home, and that equal parenting cannot
work with warring parents.
Wall says the latest case has taught him that this isn't necessarily
so, although he thinks it would be "dangerous" to
see it as a solution for all cases. "I have learned something
from that case, which is that you can have a 50-50 arrangement
which will work where the parents are quite unable to communicate
with each other except by email. I shall certainly look more
closely at shared-care arrangements now."
He welcomes government plans to try out American-style "early
intervention" programmes to help parents hammer out contact
arrangements from the moment of separation. "The court
forum is a very crude mechanism for dealing with these issues.
I think the general feeling now is that although the court
has a place, these disputes are best dealt with out of it."