This morning I have been reading Sir James Munby’s advice to parents in the the case of Re H-B (contact) and thinking about how, in such cases, small actions in the midst of highly charged emotional situations, can lead to devastating consequences for children and parents alike. In this case, the action of the father’s new wife, in pushing and bruising one of his children, has lead to him not seeing his children at all and his children maintaining an entrenched and refusing position. In the Appeal Decision, this small but significant act is set out, alongside the usual bewildering array of expert reports, views from CAFCASS, efforts of the Judge in the case and the contributions of the parents. Sir James however, in making concluding remarks, puts all of the responsibility for the loss of the relationship between father and children upon the mother and father themselves. He also speaks of being haunted by the thought that in time to come, when the children become aware of the reality of what happened, they will lose not one but both of their parents. Sadly I have to concur with his concern, this is the risk for far too many children in these circumstances, but does it have to be this way?
From where I am looking no it does not. These cases, which are worrying as well as vexing, do not have to dragged out for years and years and they do not have to be configured in such a way that the children are burdened with the responsibility for fighting their parent through court. The fact that they are, highlights for me, not the intractable nature of the case or the contribution of the parents, but the nature of the family court process and the gross lack of family court services that could support a well structured process.
The way in which the parents (who are already emotionally distressed and highly litigious as a result), interact with the family courts is well documented. The court, which offers a cool, calm and collected approach to dealing with family separation, requires parents who are emotionally dysregulated as well as often discombobulated to present themselves in such a way that objective judgments can be made about events which are often wholly or largely subjective. For many parents this is simply an impossible ask, which means that however much calm they manage to achieve inside the court, outside of it they are simply driven to act out what is really going on.
And what is most often really going on is that the normal human emotions of anger, jealousy, possessiveness and despair, are driving people who in every other way cope normally with their lives, into situations where they are simply unable to prevent themselves from behaving badly. Family separation is a hugely pressured time in people’s lives, breaking up a relationship, repartnering, trying to cope with children’s reactions whilst making sure they see both sides of the family can turn some parents into appearing to be raving lunatics. Whilst in the midst of this the children, who are just as badly affected, are given supreme amounts of power as increasingly in our society we turn to them for decisions about what should happen in their lives after separation. And it is no different in court.
Sir James, in his comments in this Appeal Decision says that parents have the responsibility for making their children do what they do not want to do and charges these parents wholly with not having achieved that. Given that the prevailing culture within CAFCASS today is that children’s wishes and feelings come first, I think that the court carries some of the responsibility for not helping the children to understand that adults and not children are the people who make the decisions about their wellbeing. Reading about the number of people involved, including therapists and expert witnesses as well as CAFCASS officers and the fact that the children were instructing their own solicitors, I cannot help but think that it is not just the parents who have failed to make these children do what they are told.
The whole family court process seems to me to be set up in ways that cannot help but risk failing separating families who are, after all, just ordinary families going through a difficult time. For sure there will be a small group of highly intractable cases which are about very difficult or dysfunctional parents, but too many of the families who go through the courts and end up mired in conflict and lack of clarity do so because of the court process, not because of anything they have done or are doing.
In America, where in some states a much more progressive approach to managing families going through separation exists, Parenting Co-ordination is one way of resolving those cases which are potentially intractable. In those court rooms the Judge is the inquisitor, who makes very early findings about disputed facts and then discharges the family into the hands of the Parenting Co-ordinator with an expectation of what should happen. It is then for the Parenting Co-ordinator, a cross between a therapist and mediator, who manages parenting arrangements throughout a defined period of time. Even those very difficult cases, where allegations of domestic violence or sexual abuse are made are not allowed to drift, with criminal proceedings heard within a very short period of time and the case returned to the family court for parenting arrangements to be made. This robust and absolutely child focused approach to managing family separation seems to be to be a wholly more appropriate way of supporting these families through the emotional chaos that erupts around separation. Short circuiting the endless rounds of professionals reporting on the ‘he said/she said’ situation and cutting right through the win/lose approach which so badly serves families.
Sir James is absolutely right when he says that cases like this are haunting. They are. Not only do they haunt those of us who work in the family court system, they haunt the next generations. For when these girls become mothers, their internalised understanding of what mothering and fathering is will be fractured and broken. Which does not bode well for the children they will struggle to bring up in a settled parenting relationship.
Family separation is an emotional and psychologically distressing experience and parents need much more than stern words and blame to help them get through it. Parenting Co-ordination is one way of helping, there are many others. Perhaps Sir James might welcome the solution to the problems he very clearly identifies.