We have divided the case law into two sections. The first section deals with cases where an order was made for the transfer of the child’s residence (A Transfer of Residence Order, or what we call a ‘TRO’ – not to be confused with a ‘Temporary Restraining Order’ or injunction). The second section is about PA cases where contact was ordered between the child and the NRP
The Act says that we must look at what the child wants.
But, what the child says she wants is by no means an indication of what she actually wants. As Mrs Justice Parker stressed in re H, the word used in the Act is ‘ascertainable’ – ie what are the child’s ascertainable wishes? These of course might be very different to the child’s expressed wishes. Re H was an unsuccessful appeal to the Court of Appeal (‘CA’) by an AP (Alienating Parent) mother who had turned the children against their father. A Transfer of Residence Order (TRO) had been made in favour of the father, by Mrs Justice Parker.
Her words bear repeating:
“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 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…
We think that this says all we need to know about the social workers in this case. As lawyers say “res ipsa loquitur” (“The thing speaks for itself”). The Court of Appeal (‘CA’) upheld Judge Parker’s decision.
[STOPPA comments: See also this from Dr Kirk Weir on the ‘Extreme Unreliability of Wishes and Feelings]
The child in PA cases simply says that what he wants is whatever the toxic parent has programmed him to ‘want’. The point is that CAFCASS should be digging around a bit! Asking deeper more perceptive questions than “OK Johnny, what do you want?” Are CAFCASS able, or indeed motivated, discover the true position? No. They must close cases. The pressure is on…CAFCASS simply look for the path of least resistance. CAFCASS are lazy. Make no mistake people. CAFCASS are not your friends. More importantly they are not the friends of your child.
Next. What a child wants, or says she wants is ‘trumped’ by her welfare needs (The Paramountcy Principle again). A child doesn’t want to go to the dentist. But it is best that they go. No child wants to do homework, but those that do tend to do better than those that don’t.
Finally, the short-term welfare needs of the child are ‘trumped’ by the child’s long-term welfare needs. So that, for example, the short-term discomfort of ‘enduring’ contact with an ostensibly despised parent are trumped by the long-term benefit of having that parent in the child’s life.
Here is a small diagram:
What is in the child’s best long-term interests?
What is in the child’s best short-term interests?
What can we ascertain about the child’s true wishes?
What does the child say?
Pretty simple, huh?
That’s what the Act says. That’s what the cases say.
WHY IS THIS NOT HAPPENING?
Simply because lower-court judges do not follow precedent, and do not enforce their own orders. And we persist with ‘wishes and feelings’ reports from CAFCASS.
Lower-court judges have to follow the rulings of the CA and higher courts. They do not do this. Why not, and why do they get away with it?
Well, we can start with an old tenet: “If you can’t distinguish the facts, distinguish the law. If you can’t do that, shout louder than the other lawyer”.
So, precedent can be avoided by distinguishing either the facts of your case from the higher-court case or by averring that the law is different in the two cases. Well, the law is the same, so we only really have to think about distinguishing the facts. This is what lower-court judges do. And every child is different, right, so every case is different…
Well, yes and no.
Certainly, every child is different but:
1 Every criminal is different. Every company is different. Every non-family case involving a child is different (for example personal injury cases). And so on.
This is a poor excuse for avoiding what we and all our children need – consistency. Whilst it might be true, as Ralph Waldo Emerson famously said, that “a foolish consistency is the hobgoblin of little minds”, these consistencies would not be foolish, but wise. That is why CA judges get the job. They are wise. Their decisions should be followed. Children need consistency, not just in the home and school and their inter-personal relationships, but in the courts. So do parents;
2 Just because every child is different, this does not mean that every case involving a child is different. If we read all the cases there is a depressing similarity about them (see our template case [link]), and as Mrs Justice Bracewell observed in V vs V 2004 (A PA case where a change of residence was ordered [link to tro page]):
‘this is neither a unique or even unusual case to come before the courts’.
Now of course, judges must have discretion. They are not there to follow anything slavishly. A judge is powerful. She/he does not have to follow what CAFCASS or experts say, nor what parents say. Judges can, and should, make up their own minds. It is not that they are not, or should not be, exercising discretion…
It is that they are failing in their chief duty – to exercise this discretion wisely. And with rigour.
‘Wishes and Feelings’ Reports
And finally, but most importantly, if the child’s expressed wishes and feelings are trumped by their welfare needs, WHY – or dear Lord – why, are we still getting CAFCASS to do ‘wishes and feelings’ reports? It is possible that such reports are useful in other child cases, but in PA cases they are a total waste of time because, of course, the child is simply speaking the words of the AP – that’s the whole point. And in the meantime, time marches on. And time, above all else, is the enemy.
STOPPA’S conclusion is this:
Wishes and feelings reports are simple, cheap and quick. Just manifestly WRONG – completely the wrong tool for this job. It’s as though the Court is asking CAFCASS for a spanner, and are being handed a whisk.