PA will start here with a BIG CLAIM.
The main reason PA cases are handled so badly, the main reason for the injustices in ‘the system’ is
There are significant problems with CAFCASS, experts, lawyers, the law itself, McKenzie Friends and, no doubt, with us, Litigants In Person (‘LIPs’). But all of these pale into insignificance compared to the main problem:
The reason that all of these other factors are much less important is simple. Judges have power. Judges can ignore CAFCASS and experts, who can usurp the role of the judge, as Mrs Justice Parker makes clear in re H:
I am in no doubt that I am entitled to disagree with the view of both the Guardian and the social worker, both of whom, although expressing their own views forcefully, recognise that the decision is for me, having surveyed all the facts and depending upon the findings that I make. I disagree with them because they have not taken into account the degree of parental manipulation and the dangers presented to the younger children from the inappropriate power given to the eldest boy. I am in no doubt that the mother’s track record is such that she cannot safely have unsupervised contact to her two younger boys at the moment. Much though I would like to give these boys a Christmas as they want it, or as they believe they want it, it is unsafe for them to spend Christmas Day with their mother and her family
Lawyers can make submissions, but judges rule on those submissions. McKenzie Friends and LIPs can be disorganised, but judges can be patient and help us sort things out. And the law is not perfect – but it’s ok.
At the end of the proverbial day, it is the judge, and only the judge, that has the power. The power to right wrongs. The power to protect our children. The power to dispense justice. The power to manage cases properly, and move them along.
Judges are simply not exercising the power given to them by the law.
What are judges doing that is so wrong?
- Making ineffectual orders;
- Failing to enforce their own orders;
- Failing to follow precedent.
- Ineffectual Orders
We will not bore you here with the countless examples of judges making useless orders. They can be seen in the case law pages of this site, and elsewhere.
Many judges, faced with disobedient APs, simply adjourn cases, wait for reports and reviews, chastise APs (with no follow-through), and seem to do a lot of ‘hoping’. And delay, delay, delay… Well, your honour, you are not paid to hope, to lecture or to sit on your hands. You are paid to judge. Do your job!
2. Failing to enforce orders
We are all sick and tired of ‘flabby’ judicial responses to repeated failures of a party to obey the court. Only 1.2% of court orders are enforced
3. The final problem is a failure to follow precedent set by higher courts (the High Court, Court of Appeal and the Supreme Court (formerly the House of Lords).
To begin with, we have to differentiate between the different types of judge, Circuit Judges, District Judges and Magistrates. We will not deal with magistrates here, save to say that they are not trained lawyers, and, in STOPPA’s view do not handle our cases well. But, being volunteers who kindly give of their time for free, they are a cheap ‘solution’.
TOP TIP – Cases involving PA, or implacable hostility between parents are not necessarily complex, but do require handling in a particular, rigorous way, and it is better that they are judged by a lawyer (rather than a magistrate), partly because lawyers are more qualified on paper, and partly because they are more qualified by (specialised) experience.
County Court Judges
The term “County Court judges” include District Judges (DJs) and Circuit Judges (CJs). Our cases will be heard by District Judges (DJs), with Circuit Judges (the next step up in the judicial chain) handling appeals from the DJs.
Both of these types of judge are trained lawyers – that is, legal executives, solicitors and barristers. These judges will invariably have practised family law for many years before becoming judges.
If you don’t like the ruling of a DJ, you can ask her/him for permission to appeal. This is usually denied, on the fairly ‘standard’ premise that it stands no reasonable prospects of success. So the next step is to go to the Circuit Judge. The first step of this appeal, is to appeal the ruling of the DJ that you may not have permission to appeal. This part costs £215 currently, as the court fee. This of course excludes any fees you pay to lawyers that might be helping you. The CJ will decide this on paper (that is, you don’t have to go to court). If he/she decides that you can have permission to appeal, he/she will make a decision on the “substantive” appeal.
If the CJ denies you permission to appeal, or grants it but refuses the substantive appeal, you may ask him to hear your case in court, at no extra charge. Here, you can use a solicitor, a barrister, a McKenzie Friend or do your own advocacy. You cannot appeal further without this step.
OK, so far so good.
Back to the question, then. Why are these judges getting PA so horribly wrong? We will try to analyse this logically.
Possibility 1 – Judges are stupid.
It is important here to differentiate between stupidity and ignorance. Ignorance simply means ‘without knowledge’ (see next possibility…). There is no pejorative attached – this is a purely descriptive term. All human beings are ignorant about some things, and most of us are ignorant about most things. It’s just a question of what one is ignorant about. Ignorance is easily remedied with education.
Stupidity, on the other hand is simply a lack of intelligence, invariably, we think, something one is ‘stuck’ with.
Is it very likely that anyone with any university degree is stupid? Even if that is remotely possible, lawyers then have to go through years more training and lots of additional (hard) exams.
It is not likely that judges are stupid.
Possibility 2 – Judges are ignorant.
Well, all lawyers, as well as other professionals have to undertake CPD (Continuing Professional Development). That is, they cannot keep their ‘ticket’ unless they keep themselves educated.
In addition, family lawyers exchange ideas and information and subscribe to learned publications. Finally, they read the judgements of higher courts, like the Court of Appeal, or should do.
There is no harm in asking judges to attend courses on PA, and we would encourage that, but, if you read the cases, they are all more-or-less the same, and our conclusion is that judges are well-familiar with PA cases, and the broad concept of alienation – see Mrs Justice Bracewell in V vs V:
“This is neither a unique nor even unusual [STOPPA’s emphasis] case to come before the courts. Unfortunately, the courts at all levels are well accustomed to intractable contact disputes which drag on for years with little or anything to show for the outcome except numerous court hearings, misery for the parents, who become more entrenched in their positions, wasted court resources, and above all serious emotional damage to the children.”
So, Judges have seen it all before, even if some are possibly ignorant about different types, different schools of thought and so on, and, perhaps critically, do not like labels like ‘PA’ or ‘PAS’ (Parental Alienation Syndrome). But whatever we call it, as HH Judge Stephen Wildblood has asked, (as indeed have some experts) rhetorically, ‘who cares?’ See his analysis of PA here. HH Judge Wildblood is obviously clued up. Indeed, STOPPA would argue that most judges are. Nevertheless, STOPPA counsels this:
TOP TIP – do not use terms like PA or PAS in court. Just give the judge the facts and let him draw his own conclusions. Labels are unhelpful.
STOPPA is confident that all family law judges see PA all day every day and are very familiar with the issues.
Judges are not ignorant.
Possibility 3 – Conspiracy Theories
You may take the view that law is made by lawyers (it is) for lawyers (well, it used to be…see later). The idea that lawyers are the only winners in any kind of litigation is not by any means new, as this cartoon from the late 18th Century demonstrates nicely:
Litigation is just a big fat money-making machine, put in place by lawyers for the benefit of lawyers. In family law though, this is even less funny than usual (if it were ever funny at all) because the biggest loser is your child.
This is moot now though, mostly. Legal Aid (‘lawyers aid?) is not available for these cases most of the time, so this ploy (if that is how you see it) has backfired on lawyers. Lawyers simply don’t get paid for PA cases, except by the occasional wealthy client, and those of us naïve enough (‘guilty, your honour!’) to ‘feed the cow’ with our last few £grand – or ten – or twenty.. One STOPPA member recalls advice from his first, and most honest lawyer so far:
“The only way you’re going to get contact is to get down on your hands and knees and crawl!”
Most family lawyers have switched from private law cases like ours to public law cases (essentially cases where kids are taken into care, and where funding is still available).
So, maybe what we should do is to try and move our cases from the private to the public arena (S.37 of the Act). Given, however, that social workers do not recognise abuse unless there are used condoms about, used syringes and babies crawling around in soiled nappies, judges are unlikely to persuade a local authority to take the case on – see HH Judge Stephen Wildblood on this, but maybe we can take heart from cases like W (A Child)  EWCA Civ 772 where Ryder LJ judged emotional harm as significant and equivalent to other kinds of abuse on the facts of that particular case.
Possibility 4 – Lack of Funding and Support for judges
Well, this argument might have some legs..
Judges would, STOPPA is sure, appreciate more bailiffs, tipstaffs and court officers. These are often former police officers who can do several useful jobs, including protecting judges from angry litigants, and getting kids away from APs. Perhaps more judges would be more robust if they had a ‘flying squad’ of tipstaffs who could just swoop into the homes of APs and get our kids outta there.
Also, if we could get our cases defined as public law cases, and a report prepared by CAFCASS under S37 of the Act, we might be able to get funding for an expert’s report. This may also be possible if we can get a Guardian appointed to represent the interests of our child, as Legal Aid is available for the child.
Howsoever it is funded, an expert’s report cannot do any harm.
Possibility 5 – Judges can’t force a 14-year-old to live with a TP if he simply will not go.
Judges sometimes like to say that they cannot force an older child to live somewhere they do not want to live, or to see a parent they apparently do not want to see.
There are several reasons that this is a poor argument.
Firstly, the child is not a party to the proceedings. The Respondent AP is. The order is for the Respondent AP to make the child available for contact. The AP must make sure the child goes to contact, or transfers residence. If this does not happen, you punish the AP. You have made an Order, judge, not a suggestion.
Next. Contact must be enforced, not ‘encouraged’ or ‘hoped for’. As Parker J commented in re H,
“The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact [STOPPA’s emphasis] she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing.
So, if Mrs Justice Parker can enforce contact, why can’t all judges? And HH Judge Gordon-Saker managed to get her order enforced in Re B, as does Recorder Michael Keehan QC, and HH Judge Lochrane, and Mrs Justice Bracewell in V vs V. Perhaps some judges’ orders are just more respected than others…
Also, how about this? A child has to go to school. That’s the law. If he doesn’t, the parent commits an offence and can be jailed. Is it more important that a child goes to school or that a child sees both parents? We seem to think that school is more important! Well, it’s very important, of course, but is it really so much more important that we will commit a parent to prison for failing to send a child to school, but will do nothing when that same parent fails to make sure that their child sees the other parent?
Possibility 6 –The Criminal Burden of Proof being required to make committal orders
We already know that 98.8% of the time, judges do not put defaulting APs in jail. Perhaps this is because, to do so, the criminal standard of proof is needed – that is, that the court must be satisfied beyond reasonable doubt that the AP had the requisite mens rea (guilty mind, or intent) as well as the actus reus (guilty act – the breach of the order).
But STOPPA doubts this, for one compelling reason: Punishments like community service require only a civil standard of proof – that, on the balance of probabilities the defaulting party knew damned well what they were doing, and did it anyway – and this punishment is not used either!
Next, though, we could introduce other punishments that require only the civil standard of proof, like confiscating the APs driving licence or passport, as proposed by Suella Fernandez MP. But that’s not it either is it? If judges are already failing to punish with other measures that require only a civil standard of proof, why would they start doing it with new measures?
Suella Fernandez has mooted a ‘three strikes’ option – that is, the defaulting party is given two opportunities (generous, no?) to comply before being sent off to the gallows…Perhaps there is something to this. If the AP breaches an order, the judge gives them a proper telling off. Then, the AP does it again. Now the judge says ‘look, I really, really mean it this time’. So, the AP is well and truly on notice, and is going to have trouble pleading no mens rea, right? But this happens already and still APs ignore court orders.
Judges have become a laughing stock, so we arrive at the final possibility…
Possibility 7 – Judges are weak, feeble windbags.
This is an allegation that STOPPA feels has some traction. Only a very cursory examination of the evidence is needed to reveal this:
Judges constantly make ineffectual orders, seeking review after review (“I’ll order this and see how it goes in 3 months or 6 months’ time”), or endless adjournments, as Judge Wildblood points out, and which we see many times, for example at para 7 of D vs H 2011] EWHC 3521 (Fam) where Hedley J notes:
“There were a considerable number of factual disputes between the parties, and, indeed, criminal proceedings had occurred at one stage, and accordingly, Her Honour Judge Harris, who endeavoured to provide judicial continuity at Watford, fixed a fact-finding hearing for 17th October 2008. For many different reasons, but as a matter of fact, that hearing was adjourned on no less than seven occasions before ultimately being considered by the learned judge on 25th March of 2009 and, in respect that, the judgment which she gave on 24th April 2009. I will say more about that in due course.”
- Certainly, adjournments and delays for ‘review’ are OK once, maybe a couple of times, with short reviews – a month at a time maybe. But time and time and time again? That harms our children. Delay is inimical to justice. That is not only obvious, but is spelt out in the Act;
- When making such orders, judges can effect a ‘monitoring order’, where CAFCASS could report back as to whether the order has been followed by the parties. Judges will express a ‘hope’ that a recalcitrant RP will see sense and facilitate contact and stop hurting their child. They then seem surprised when there is no compliance with their order;
- Judges do not enforce their own orders as already mentioned. This is a very common complaint – a ‘flabby’ judicial response, that sends out a disturbing message to the parties, that it is OK to defy court orders and suborn children into doing so. Only 1.2% of court orders are enforced.
- Judges do not follow precedent. There is a reason why Judges get elevated to the High Court and Court of Appeal (’CA’) – they are (usually) wise. Their decisions should be followed by lower courts. If they were, the CA would be freed up to deal with other matters. Why are higher-court decisions not followed?
1 ‘Flabby’ Judicial Responses to Breaches of Court Orders
Sir James Munby, President of the Family Division, says this:
“Other things being equal, swift, efficient, enforcement of existing court orders is surely called for at the first sign of trouble. A flabby judicial response sends a very damaging message to the defaulting parent, who is encouraged to believe that court orders can be ignored with impunity, and potentially also to the child.”
Mrs Justice Parker says this, in re H:
“Children who are suborned into flouting court orders are given extremely damaging messages about the extent to which authority can be disregarded and given the impression that compliance with adult expectations is optional.”
Committal to Prison – Why not Jail?
Well, the traditional wisdom has been that putting a recalcitrant AP in jail is not going to help the child.
But putting a murdering mother in prison is not going to help her children. Putting a violent mother in jail is not going to help the children. Perhaps we cannot put any mother in prison for any criminal offence, lest she cries “but what about my kids?!” Mothers are put in jail all the time for all sorts of criminal offences, as are fathers. Why would there be an exception for breaking court orders that relate to the welfare of children, unless judges consider contempts of court in a child-related matter a somewhat trivial offence? Perhaps all criminals that are also parents should escape jail time!
In addition, putting an offending parent in jail will actually help. This parent is a bully. They are bullying you and they are bullying your child. They are even bossing the judge! Teaching them a lesson is desirable, and necessary. We are not saying that they should go to prison forever and the key thrown away. 24 hours in a cell is a very sobering experience. Like all bullies, they will not stop without a metaphorical punch on the nose.
And if the court is not minded to do commit the offender, there is a range of other options.
The court can order the AP to pay you compensation for financial losses (S. 11 (O) of the Act):
“If the court is satisfied that—
(a)an individual has failed to comply with [F3a provision of the child arrangements] order, and
(b)a person falling within subsection (6) has suffered financial loss by reason of the breach,
it may make an order requiring the individual in breach to pay the person compensation in respect of his financial loss.”
This can be ordered for APs that breach court orders, and can be used in conjunction with other orders. (Section 11 (J) of the Act)
The court can order a disobedient AP to pay a fine.
Normally, in family matters, each side pays its own costs. In PA cases, STOPPA would argue that there is a level of intent from the AP to ignore orders, a deliberate attempt to disrupt contact and so on, and so a costs order would be appropriate – that is, that the AP pays your legal costs.
The court can compound punishments – for example, the judge may order a period of imprisonment and a fine, and community service, and compensation, or any permutation of these.
Judges have a range of powers. They simply do not use them.
STOPPA’s view is that flabby judicial responses are the chief cause of the malaise of delay and consequent injustice and expense in the family court system.
So, what can we do about this?
Appeal when the AP does not comply and this non-compliance is not punished. Perhaps not the first time. But if judges repeatedly dish out ‘flabby’ responses, you should appeal. If you don’t you are giving the same ‘flabby’ message to the judge that he is giving to the AP, that you are prepared to put up with harmful and repeated judicial leniency and inertia, and the delay that goes with it.
2 The Failure of Lower Courts to Follow Precedent
First, we are dealing here only with the Laws of England and Wales. Scotland and Northern Ireland have different laws. However, English judges can take account of cases decided in other countries and occasionally (but rarely) might refer to Australian, American or Canadian cases too, although such cases have persuasive value only. Mostly, though, English courts concern themselves only with previous English cases. The previous decisions of higher courts bind the lower courts – well, at least in theory.
In practice, however, it seems that some lower court judges simply make it up as they go. How can they get away with this, given the well-established doctrine of precedent? Well, like this: the court will distinguish the case that they are hearing from the higher-court case, by using the simple mechanism of asserting that ‘all child cases are different’ and courts do want and need to be flexible, of course. To a point. But, as you will see, although all children are different, most cases involving children are depressingly similar. In particular, PA cases seem to run off a standard ‘template’.
You will see this template replicated time after time after time in the case law that appears on these pages. You would think, would you not, that someone, somewhere, someday might say “hang on a minute, we’ve seen this all before! How about a new approach, albeit one that can be varied in exceptional circumstances?”
This has not happened, and the courts repeat the same fundamental errors, time after time after time after time…And in the interim, our kids suffer. So do we.
Most of us will be dealt with by a District Judge. This is usually a barrister, but can be a solicitor. All PA cases should be dealt with by a District Judge, not Magistrates (who are not lawyers). If we do not like a decision here, an appeal lies to the Circuit Judge. If we do not like his or her decision, we can go higher, ‘leap-frogging’ the High Court, to go directly to the Court of Appeal. The Court of Appeal is where most important cases are decided, but occasionally their decisions are appealed to the Supreme Court. Rarely, very rarely, those cases can be appealed to the European Court.
At all stages along the way, you ask the judge you wish to appeal, for permission to appeal his or her decision. This is usually denied on the basis that your appeal has ‘no reasonable chance of success’. So the first step of most appeals is to appeal the decision not to grant permission to appeal. Hmmm…
In our section on legal cases for contact disputes and transfer of residence orders you will notice several things:
- Most cases go the way of the TP (targeted parent) – sounds great, but keep reading;
- The cases, though different in detail, contain many common themes from our ‘template’
Why do most Court of Appeal (‘CA’) cases go our way, and why is that not as encouraging as it sounds?
Most lower-court cases go the way of the alienating parent for several reasons:
- A vast majority of the cases that go against us (and our children) are decided in lower courts. They are rarely published or scrutinised. We are the hidden cases;
- Lower court judges quite often follow CAFCASS reports slavishly – the blind leading the blind, and the deaf leading the deaf… But note that courts are not bound by CAFCASS reports, or experts’ reports, and Higher courts are not always so easily persuaded! This is what Mrs Justice Parker says in Re H:
“The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact [STOPPA’s emphasis] she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.
The Children’s Guardian also urged me to do nothing and not to intervene because of what the boys say they are not willing to see their father. She has done remarkably little as a Guardian. She has not read most of the papers, she hardly knows the boys. When it was put to her that if this was a case of parental manipulation and recruitment, then this could be or would be emotionally abusive to the boys, she took that on board seemingly, or at least superficially, but then said, “But the boys say they don’t want to go.” She was reminded that they were fine when they went on contact. “Oh,” she said, “but the boys don’t want to go.”
You can almost feel Mrs Justice Parker’s frustration bubbling off the page…
- In the Court of Appeal (‘CA’), the concept of PA has been described as “mainstream” and, in the Court of Appeal, it is;
- The only cases that get to the CA involve TPs that are extremely tenacious, patient, and, usually, wealthy. Most of our cases have already been ‘weeded out’ by lower courts;
- Cases that get to the CA can take years. How much patience/cash do you have? The problem is that even if you win the argument, the alienation is by now so deeply entrenched that your child will still not come and live with you. The child refuses. See the very disturbing cases of re A and re S. The problem is that you cannot begin to reverse the alienation whilst the child is still in the thrall of the alienator. And to move the child is often seen as too distressing for the child. Or, as in Re S the Courts take so long to ‘grasp the nettle’ that the alienation is too deeply set in, and the child will not cooperate with a move to the TPs home.
- The Court of Appeal, seeing what is going on, tends merely to ‘bat the ball back’ to your original judge and tell her to look at the case again. Or, if you’re lucky, the CA might direct your case to a different judge. More delay…
But even given that, STOPPA’s solution is still…Appeal! This is the only way under the current broken system to get any kind of justice. You at least stand some chance of a court seeing the problem and getting a new judge.
But note that there are some County Court Judges these days that are making more robust orders.