What’s the Law about PA?
- Statutes (Acts of Parliament)
There are three main Acts that we need to know about:
- The Children Act 1989 (CA89);
- The Children and Adoption Act 2006;
- The Children and Families Act 2014
- Children Act 1989 (CA89)
This is the most important Act, and lays down provision for the protection of children when a couple separate/divorce.
This says that when a court is deciding questions about the upbringing of a child, the child’s welfare needs shall be the paramount consideration. In considering the welfare needs of the child, the court
“ shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
OK, so all good so far, right?
Well, no. The problem is that CAFCASS and (almost necessarily) the lower courts usually say that the child’s expressed wishes are his ascertainable wishes. This is wrong as Parker J has pointed out. It’s pretty obvious surely that what a child says he wants is not necessarily what he does want. Indeed with PA and a ‘recruited’ child the whole point is that the child is speaking someone else’s words! CAFCASS need to ask perspicacious questions, not just “So, Joey, what do YOU want?” – CAFCASS and some others see this as putting the child first. It is exactly as wrong as it can be. Putting the child first quite often means doing the right thing for the child regardless of what the child says. It will be unpleasant, but it will be best in the long run – a point the Court of Appeal has made time and time again.
Also CAFCASS seem to think that para e) above should be interpreted narrowly as meaning ‘any short-term or immediate harm…’ Again, this is wrong. As mentioned above, the Court of Appeal have said several times now that the long-term welfare needs of the child ‘trump’ any short-term discomfort he might feel by contact going ahead. The argument is that although you may not like going to the dentist/school/etc, it is in your best interests to go. In short, kids don’t get to make the rules. Children don’t know what is best for them. Indeed, most adolescents and indeed adults don’t! Why on earth would we trust a child to know the best course? How can a child possibly understand that chopping dad out of their lives will be a bad thing, for the child, the dad, and indeed society in general? Of course a child cannot understand that, and, apparently neither can CAFCASS and a lot of judges. Amazing, isn’t it, when you consider the number of studies that have concluded that kids need dads – and if they don’t have dads, it turns out badly for all of us. Such kids usually grow into dysfunctional adults – they’re more likely to smoke, drink, take drugs and get involved in crime. Surely this is news to precisely no-one.
- The Children and Adoption Act 2006 and The Children and Families Act 2014.
I’m going to take these together because all they do is to amend the CA89. The Children and Adoption Act 2006 says that the court can punish parties that disobey court order by making them pay cash, or doing community service.
The Children and Families Act 2014 says that the courts can assume, unless the contrary is shown, that dad’s involvement in a child’s life will be good for the child (so far, so what?!) but that this involvement can be indirect and that the child’s time need not be spent equally with each parent. Now – THAT was an opportunity to do something meaningful. To stick in the clause that we and many others want, ie that there be a rebuttable presumption that a child spend half its time with each parent – in essence, giving fathers parity-equality with mothers. This was not done, and a great chance was missed.
We need to get that part of the Act (S1 (2 (2b)) replaced with a subsection saying ’50-50’. The Statute, as it stands, means that a judge can order that kids live with mum all the time and that dad can send a few emails here and there, and a Christmas card. DADS SIDELINED AGAIN. Where is the gender equality here? Where are the child’s long-term welfare needs?
Judges simply should not have this discretion. They should order 50-50 all the time unless there is credible and substantiated evidence to the contrary (not the ridiculous allegations we routinely get from alienators).
- European Convention on Human Rights
S8 says that it is a basic human right to have a family, to have the ‘society’ of children, parents etc. Alienators deprive their children, and us, of this right.
- Case Law
The law works roughly like this. We vote for MPs. MPs pass laws. Judges interpret those laws. Quite often statutes are unclear or cannot, with the best will in the world, cater for every eventuality. When those unclear moments or unforeseen cases come along, judges have to work out what to do.
The case law of England and Wales recognises the existence of PA (it is now ‘mainstream’), and that it is ‘extremely harmful’ to children.
You may be aware of the judgment of Parker J (as she then was), quoted with approval by McFarlane LJ in Re H  EWCA Civ 733 but, for the sake of completeness, I have pasted it below:
“72. 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. …
73. 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. [in my case, for example, the judge has just commented to me that he has to rely on CAFCASS – ‘they are my eyes and ears” – well, that is a shame for my son – because a man that has met him once is relying on a man that has met him once!] 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 [my emphasis], or at least superficially [my emphasis], 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.” [Doesn’t this just make you want to scream?!]
74. I regard parental manipulation of children, of which I distressingly see an enormous [my emphasis] amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. 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. Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message [my emphasis]. The recent decision of the Court of Appeal, Re M (Children)  EWCA Civ 1147 requires to be read by all practitioners in this field. Lady Justice Macur gave firm and clear guidance about the importance of contact. Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.[my emphasis]”
Sounds good, huh?
Yes, well, if you happen to be in the High Court or Court of Appeal. Or before a particular judge.
The problem at the moment is that the message ‘PA is a very bad thing that harms children and alienated parents’ hasn’t quite reached the lower courts or CAFCASS.
We would love to see Lady Justice Parker give a talk to all Circuit Judges, District Judges and magistrates. Surely this is not beyond the wit of man? Maybe we can try to organise that…
Or maybe those parties can just try joining the dots…
There’s plenty of other case law that helps alienated parents – take a look at this site – it’s a little gem! http://www.thecustodyminefield.com/flapp/menu.html
The Laws of England and Wales are clear enough. They are not perfect and S 1(2(2b)) of the Children and Families Act 2014 needs to be replaced with something fairer, as we have proposed. But, in essence, the statutes and case law, combined, say this:
- Put the welfare needs of the child first;
- We must listen to what kids say, but what they say they want is not necessarily what they do want, and anyway may not be in their best interests;
- There is a rebuttable presumption that children need fathers in their lives;
- Although contact may cause some short-term problems the court must look at the long-term welfare needs of the child and order contact unless there are very, very, very pressing reasons not to do so.
What the case law (and statute) does not say is that there should be a presumption that the child spends 50% of its time with each parent. I think there is a case called White v White establishing that, where the marital financial assets are concerned, there is a rebuttable presumption that each party gets 50%.
WOMEN HAVE EQUALITY WHERE CASH IS CONCERNED…
We seem to value money more than kids…
PS – If any lawyer reads this and wants to correct any of it, please mail us.