Children -v- The Family Court

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When a couple separates, they are faced with trying to reach an agreement regarding arrangements for the child/children, and where an agreement cannot be reached, a Family Judge is requested to make a legally-binding decision on contact, including whether such contact should be supervised. Typically, a Court Order will seek to provide both parties with an equal amount of time with the children/child, often the words “progression of contact” can be read in the Order.

The Court often has to make difficult decisions when there is a history of violent behaviour, problems with addiction and possibly mental illness with one or both parents. The Court’s primary concerns are the child/children and will, where possible take into consideration their “wishes and feelings”. Yet, it would seem that for some children, the Court is not able to grant the protection they deserve, with at least four children being killed by a parent in the past five years after the Family Court granted access.

What happens in cases where the child/children do not want to have contact with the other parent but are deemed “too young” to know what they want? Their voices are simply lost. Sir James Munby in a recent interview suggests that :

“the system was failing to accommodate the voices of children “well enough”- including in cases where they wished “to see the court, give evidence or meet the judge.”

When the resident parent raises concerns and safeguarding issues in relation to the other parent, they can be criticised as being “controlling” or obstructive and not facilitating contact. The fight between separating couples can be a bitter one, dictated by anger, and Court Orders are sometimes used as weapons by one parent against the other. Sometimes, Orders are so detailed, that any divergence from it will lead to yet more Court proceedings, rather than a collaborative effort by both parties in the best interests of the children. Instead of working together, for some, it is easier to simply go back to court.

It means, and sometimes in direct contravention of the child’s wishes and feelings, the non-resident parent builds up the time they spend with the child, including overnight contact. All too often however, we have a parent who is stuck between a rock and a hard place, knowing that such contact is having a negative effect on the child but is bound by a Court Order. And in some cases, child victims are overlooked by children services altogether. The recent murders of Dylan Tiffin-Brown and Evelyn-Rose Muggleton are just two examples of systemic failures.

As a solicitor, I question my own role from time to time when making applications to the Court too, but my hands are tied and I rely on the system for guidance and for the Court “to do the right thing” by the child. There is a recent letter to the government signed by more than 120 MPs asking for an inquiry into how Family Courts in England and Wales treat victims of domestic violence. The letter states,:

 “the lack of transparency in the family courts, while essential in maintaining the privacy of families and children, does not allow scrutiny and masks decisions that are made contrary to the interests of victims of domestic abuse, rape and violence – or their children” and suggests that there needs to be new protective measures in place for parents and children. The call for investigation in to this is backed by Sir Munby, who calls for “…a detailed independent analysis by reputable academic researchers”.

Maybe the answer is more access to funding for the sake of the children, and/or maybe there is evidence to suggest that in certain circumstances children should be represented by an independent person?

Whether parents like to admit it or not, children know what they want and understand these situations. Younger children need more protection from the Courts and children services and need to become a significant part of the decision-making process.

The murder of children and toddlers is simply unacceptable and we must do all we can to prevent this happening.

Contact IBB’s family law experts today

IBB Solicitors’ family law practice provides expert advice for high-net-worth individuals in divorce cases involving assets ranging from £2m to £10m; pre-nuptial and post-nuptial agreementsco-habitation agreements and pre-civil partnership agreements; and representing children in private law cases in disputes involving parental alienation, contact and residence arrangements following the breakdown of parental relationships. To contact the family law team please email or call 03456 381381.