A NEW APPROACH 2018-01-26T16:47:34+00:00

A new approach

The existing law is not perfect.  But it’s not bad.  The problem is not with the law, it is with the application of the law.  STOPPA suggests a new approach, as follows:

Step 1 – Triage

All cases involving children should be triaged.  Not by a clerk, certainly not by a magistrate, but by an experienced judge.  This is probably the most important step.  It is vital that PA cases are differentiated from ‘normal’ family cases, from the get-go.  This is important because PA cases are different to other family cases.  This is not a normal case of parents not getting on, whose differences might be resolved by ‘kitchen table’ methods like mediation.  Unlike other cases, PA cases must be dealt with aggressively.  Time is the enemy as section 1(2) of the Act tells us.

Step 2 – Fact-finding

Alienating parents are liars.  Usually pathologically so – that is, they lie not because it serves their interests (although, under the current system it plainly does), but because they cannot help it.  It is in their nature to lie.  An early fact-finding hearing will expose these lies.  This is where a judge hears evidence from the parties, on oath.  A lie on oath is a contempt of court, and a criminal offence.  It is not unusual to hear of narcissistic RPs stand up, look a judge straight in the eye and tell the most outrageous lies.  They have no shame.  Of course.

But an experienced judge will be able to see through such lies.

When, after this, a judge comes to decide on the best course for the matter to take, he or she will have a much better feel for the case.

There is no need for lawyers at this hearing.  There is no need, or point, in CAFCASS being involved, apart from providing a safeguarding report – a report telling the judge that the kids are (or aren’t) safe with both parents.  Judges do not, in any event, have to follow slavishly a CAFCASS recommendation.  CAFCASS can easily usurp the role of the judge here.  Judges are experienced and intelligent enough to work it out themselves.

Just the judge, you and the RP.  That’s it.  Cheap and quick.  ‘Quick’ does not have to imply a superficial analysis.  Here, there is an experienced judge assessing the best way forward.

Step 3 – 50-50 contact and Shared Residence

As a start, it is important to convey a big message to both parents – PARITY.  Parents are equal.  They have equal rights of contact.  And your child has a right to see both of you.  As a default, but rebuttable, presumption, 50-50 contact is just and in the best interests of the child.  As we say, it is a REBUTTABLE presumption, so, if the judge feels that, in the interim it would serve your child’s best interests to see you 70% of the time, and the other parent 30% of the time, the court can, of course, order this, or indeed any other time-split the judge thinks appropriate.

Step 4 – Directions from the judge

Well, the great thing about the Act is that a judge has very wide discretion in these cases and lots of powers and options.

The court could see how this goes, for a while, and work out what to do next according to the results of the contact.

A Quick Note on the ‘No Order’ Principle

In family law, there is an overriding principle that a child’s situation should not change.  Section 1 (5) of the Act says this:

“Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.”

This principle needs to be abandoned for PA cases for one simple reason.  Your child is being emotionally abused.  The priority is to get the child away from the abuser.  Many, many cases spell out that Judges must not sit on the sidelines and do nothing.   PA cases must be handled aggressively by the courts – delay is the enemy, as Section 1 (2) of the Act makes clear:

“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.”

In PA cases, the conservative option is to move the child, rather than to allow the child to remain with its tormenter.
If your child was being sexually abused or was covered in bruises, we would hope that the court would order the child’s residence to be changed immediately. It should not be any different with PA cases simply because the fractures, scars and bruises are not visible – they are no less deep, and are often longer-lasting than physical injuries.

Perhaps in other cases it may be safer to do nothing.  But in PA cases, that is completely the wrong approach.  Nettles must be grasped, and bullets bitten!  The case must be tackled with authority and resoluteness. PA must be nipped in the bud.