Judicial Judgment ‘Wholly Lacking’ in Intractable Contact Cases


F (Children) [2015] EWCA Civ 1315 is yet another case involving alienation where the handling of the case by the lower court was ‘wholly inadequate‘. Not my opinion (actually it is, and I agree…), but that of the Lords Justice who heard the appeal.

The case highlights the failings which are increasingly commonplace in the lower courts. The child has been poisoned by one parent against the other yet the court grants excessive weight to the child’s wishes and feelings at the cost of their welfare needs, and fails to address the issue of the alienating parent’s behaviour. The child is left subject to continued emotional abuse and the parent who sought the court’s help is utterly failed. Months elapse due to the court’s failure to get a grip and problems become entrenched.

Why oh why when cases are described as complex, do the judiciary have no set strategies in place? Expertise is introduced in some individual cases (with the involvement of the likes of Dr Kirk Weir, Professor Mark Berelowitz and Dr Sue Whitcombe), but it’s luck whether the court will allow experts to be instructed or the parties can afford it. Why are these experts not involved in formulating more universal strategies?

The case highlights that the guidance from the upper courts is simply not filtering down. The method of communicating guidance from the senior courts to the lower courts needs complete reform. It’s broken.

Last year the case H-B [2015] EWCA Civ 389 highlighted the common failings in case management in intractable contact cases. Many similar cases never reach appeal because the increasing number of litigants-in-person lack the skills and knowledge to articulate the grounds.

The Family Court is failing to adequately train its judiciary to cope with these cases and it’s unacceptable. There is an absence of strategy. Where expertise and professionalism is warranted, too many litigants are confronted with amateurism and poor judgment. In the vast organisation of the Family Courts, there is too much reliance on individual judicial discretion where sadly, judgment, experience and capability is lacking. Process reform and training is needed to provide consistency and professional standards. Without this, frankly, too many judgments see families failed and children left subject to harm. The court system remains chaotic with the capability of the judiciary widely variable, from highly competent and professional to appallingly poor.

Eleven years ago Sir James Munby bravely spoke out about inadequacy in how the courts handled these cases:

“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.”¹

Eleven years on, too little has changed. If you heard a ‘thunk’ last week, it was my head meeting the desk as I read Sir James’s wording when he announced the release of new draft court orders to better meet the needs of litigants in person:

“Fourthly, it is hoped that as many judges and justices’ legal advisers as possible will use the Judicial Template to produce the new orders. I would very much encourage you to do so. I know that in some areas they are used by judges and legal advisers at all levels. However, tick box forms have been drawn up for those who do not feel able to use the Templates.”²

As with poorly behaved parents, those in the judiciary who won’t follow guidance and new process need more authoritative and prescriptive direction. Messages like these beg the question “If they aren’t capable of filling in a form, should they be in the job?” If they don’t follow the court’s directions themselves, little wonder they don’t expect parents to. Process improvement alone isn’t a panacea, there needs to be quality control. Failures by some in the judiciary to follow basic practice directions and practice guidance needs addressing… firmly. There needs to be adequate quality control to identify poor practice with retraining or replacement. Name me one other section of society where this doesn’t occur?

An associate of mine commented recently that a Magistrate said “who’s he” when in a discussion about Sir James Munby. It’s fine for the President to issue guidance, but if some Magistrates don’t even know his name, it begs the question “have they ever read anything he’s produced?

In intractable contact cases, it should not be for a litigant-in-person (or counsel for that matter) to have to inform magistrates or judges of how they should be doing their job or the options and strategies available to them. These people, in a world of litigants-in-person, need intimate knowledge of the guidance handed down by the upper court. Time and again the knowledge is lacking. It needs saying, regardless of the ‘tuts’ for being disrespectful. It’s time that child welfare trumped judicial sensitivity. Even basic gatekeeping and case allocation guidance isn’t being followed. My first step would be to knock the heads of Designated Family Judges together. If they don’t want criticism, then follow the guidance and make sure that complex cases are handed to judges with the capability and experience to hear them (they should be doing this, but aren’t).

To read the latest judgment added to our Parental Alienation and Intractable Contact Dispute Case Law Library, follow the links below.

F (Children) [2015] EWCA Civ 1315 – HTML Version

F (Children) [2015] EWCA Civ 1315 – PDF Version to download and print

You may also want to refer to the Reform Proposals we have made to help improve outcomes for children caught up in these cases. Reform is possible, and desperately needed. Why? I will echo the comments of Mrs Justice Parker, one of the capable members of the judiciary who I wish could be cloned. The problems are known, they just go unaddressed:

“74. I regard parental manipulation of children, of which I distressingly see an enormous 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.³

¹ D [2004] EWHC 727 (Fam)

² Announcement By The President Concerning Private Law Orders – 21 January 2016

³ H (Children) [2014] EWCA Civ 733