Custody Minefield Website - New Content

A new section has been added to The Custody Minefield website which discusses Leave to Remove (LTR) and provides a sample statement (including arguments) to parents seeking to have an LTR application overturned.

My thanks to a number of Families Need Fathers members for assisting with this project.

www.thecustodyminefield.com/22.html

The Ministry of Justice Complaints Process - a need for change

The current complaints process run by the Ministry of Justice - including the work of the Office for Judicial Complaint (OJC) and the Judicial Appointments and Conduct Ombudsman - does not allow any way to complain about poor judicial discretion, poor decision making or unfairness regarding how a case is managed. If there are instances during proceedings where a Judge said things that were unreasonable, unfair or incorrect in law, the Ministry of Justice will not consider a complaint made about such things. The Office for Judicial Complaint can only consider complaints about Judicial Misconduct and poor decision making is not considered to be misconduct.

Under their complaints procedures, the only route to address such matters is by appealing to a higher court, but an appeal will only be considered if you disagree with the final judgment. Appeals are costly, and may cost tens of thousands of pounds. An ability to have a complaint heard is dependent on your level of wealth. For many, this results in there being no way to raise the issue of poor standards within the Courts.

The Ministry of Justice (MoJ) needs to reconsider why only 2 complaints which related to the mainstream judiciary (out of 938 complaints) in 2006/7 resulted in any action being taken. There is a growing perception that the Office for Judicial Complaint was established to show that all is well within the Courts rather than to pinpoint areas of improvement within a service which faces mounting criticism within the mainstream media. If the MoJ thought that the OJC would improve its credibility, so far, that office is failing.

The guidelines that the OJC adheres to are set out in The Judicial Discipline (Prescribed Procedures) Regulations 2006. These guidelines need to be reconsidered to include matters related to the quality of judicial decision making. The boundaries between a poor decision and unfairness, bias and discretion are too easily blurred and allow the MoJ to dismiss out of hand complaints that need to be taken forward to improve service standards within the Judiciary.

It is understandable that the Judiciary wishes to protect their rights to discretion when making decisions in Court, but this becomes unacceptable when poor decision making goes unaddressed.

Grandparents' Rights Campaign News

Article in the News & Star on the Grandparents' Rights Campaign and cross party political support. To read the article, click on the following link:

News & Star Article

Leave to Remove, case law, and missing children

Leave to Remove (LTR) is perhaps the worst application of case law that exists in family law. LTR is usually a request to the Court made by a resident parent (or parent with shared residence but having the majority of care) to emigrate with the children.

You would imagine that the courts would count heavily the implications of the children's removal from school, their social network and extended family, familiar homes, native culture, and their day to day relationship with their non resident parent (or parent with shared residence). Also the problems in maintaining contact once the child is removed from the Court's jurisdiction. Sadly this is rarely the case although the welfare checklist lists a variety of factors which should weigh heavily against LTR being granted. It is estimated that 90% of LTR cases go ahead with the main reason being that to refuse it would upset the resident parent and that this would (in theory) adversely impact on the child's welfare. This decision is rooted in the case law Payne v Payne from 2001 which has caused misery to many in the years that have followed and the separation of child from parent and grandparents.

In one case, I've heard a Judge comment that removal to Australia would be a wonderful adventure for the child. In the summing up was a nod of sympathy in the direction of the paternal grandparents and to the father who was devastated. As to how the child would react, there was no qualified consideration. CAFCASS had not even met the child concerned. Prior to LTR having been granted, the father had provided care for more than a third of the child's time. This was deemed to be less important than the mother's right for a lifestyle change... an adventure.

How can you assess the impact on the child prior to the emigration having happened? It isn't possible and the Court makes these decisions blindly. There is no ‘come back’ since the child, once out of the Court’s jurisdiction, is no longer the Court’s problem. There is no research which assesses how children have been affected in the long term by such decisions. There is, however, plenty of research that shows that when a child is deprived of a father they will be more likely to suffer mental health problems, addiction problems, teenage pregnancy and attain a lower academic achievement than their peer group. Sadly, the definitive case law predates this research, and the Courts haven’t yet caught up.

An article in family law week discusses LTR and the current thought processes of the Court in relation to parents seeking to remove their children abroad. This article is essential reading for those who are interested in LTR.

Leave to Remove. A lawyer's all too personal view.

There is a solution, that emigration with the children be prohibited until the youngest child is 16 should their removal from the UK result in the children being substantially deprived of their other parent and extended family. There could not be disappointment since resident parents would be aware of these restrictions at the point of separation and determining the children's living arrangements. The children's Article 8 'Human Right to family life' would be protected. It seems a little strange that the Children Act 1989 only allows a resident parent to holiday abroad with the children for a month at a time, but a request to the Court to emigrate permanently is rubber stamped on 90% of occasions.

In the UK Courts, a parent's desire for a lifestyle change and their inability to put children's needs first outweigh:

· the loss of substantive care from the other parent;

· the loss of relationships with the extended family;

· the financial and logistical impracticalities of making contact work. A parent’s ability to maintain contact is based on their income rather than the children’s need for contact;

· the disruption to the children's emotional development. It cannot be argued that such a drastic change in the status quo does not significantly impact on the child;

· the loss of the children’s peer relationships and social network impacting on the children's social development;

· the impact of removal from school, the children’s needing to adjust to different teaching styles, different teaching methods and syllabi, and the inevitable disruption on a child's educational development.

Within the Children Act 1989, the Welfare Checklist (s 1(3)) sets out the criteria that the Court must consider when making judgments that affect a child’s life. Nowhere does it list ‘not upsetting the resident parent’ or that ‘the resident parent’s wishes outweigh the needs of the child’. Leave to Remove case law and its application goes against the key legislative principal set down by Parliament that a child’s welfare must be the Court’s paramount consideration. The vast majority of Leave to Remove judgments are fundamentally incompatible with the Human Rights Act 1998.

In a recent case, it was suggested by CAFCASS that the father would maintain a 'connection' with his child by reading a bedtime story via webcam. The CAFCASS Officer hadn't realised that time zone differences meant that the father was at work when the child was going to bed. Bedtime in Australia was 9.30am in the morning in the UK.

I wholeheartedly support Steven Moseley and his family in their campaign to find Savanah-Jade, and urge you to do the same. Please spend the time visiting his website for Savanah, and join his Facebook campaign to demonstrate your support.

Grandparents Apart Press Release

The Scottish Government is refusing point blank to allow legal contact between grandparents and their grandchildren. A leading children’s charity has even asked them to allow grandparents information about their grandchildren’s welfare. This has been ignored.

By granting total power to one parent it encourages many parents to use their children as weapons in blackmail and revenge against the other parent/grandparents. This is a despicable trend which is on the increase. Children growing up in this environment are educated that these methods are the normal way to live. Our Government knows this is happening and allow it to go on

About the MP who was mugged recently. The muggers were said to be the scum of the earth. Could they be some of these children brought up learning lying, cheating, using people and having no respect for anyone. Are the children of today who are growing up without the stability of their family the muggers of the future?

82% of illnesses suffered by grandparents ie depression, loneliness etc are caused by separation from the family. This problem especially for older grandparents could be helped enormously if the government encouraged and supported family relationships.

We are not asking for a takeover as some ministers have inferred, but to be able to know and protect our grandchildren, to be there if they need help. All that is required is a couple of hours a month if geography permits or by mutual agreement. To keep contact by phone, text, letter and be able to send presents at Christmas and Birthdays which children look forward to. By the governments refusal to acknowledge this problem they are not allowing a very much needed helpline to our grandchildren. This family helpline would give the children extra protection because of the terrible drug and alcohol abuse which the government say is on the increase.

Nothing less than a radical shake up of family laws and the administration of these laws will be good enough.

Jimmy Deuchars - released on 28 May 2008

Cafcass South East - private law service is inadequate and unacceptable

Ofsted have once again pulled no punches in their investigation into CAFCASS, with the South East Region being the most recent to be investigated. Unacceptable delays, poor reports to the court, weak recording, inconsistent assessment and poor management supervision are highlighted in the Ofsted Report.

CAFCASS South East have understandably prioritised resources to public law proceedings which has left investigations into private law cases poorly resourced. Quality is affected which leads to poor outcomes for children. The Government needs to prioritise funding for this service if it is to meet its unfulfilled promise to combat the UK's poor record on child welfare.

To read the report in full, click on the following link:

Ofsted's Inspection of CAFCASS South East Region

Court admits flaws in family law

A family law case in the Court of Appeal has recently featured in the Times and Telegraph. This case once again highlights the faults in our legal system and how judges reward malicious parents who use their children as a weapon with no regard to the emotional and psychological damage caused.

The frustration is clear in the judge's summing up: “The father complains bitterly, passionately and with every justification that the law is sterile, impotent and utterly useless - we have to acknowledge there is a degree of force in what he says." Lord Justice Wall is widely respected for common sense judgments, but even his hands are tied by a system that doesn't work. In this case, the mother is rewarded for poisoning her child's mind, and the child left with a parent who is prepared to cause them emotional and psychological harm.

LJ Wall's comments echo those of another courageous judge, the Honorable Mr Justice Munby, who made similar comments in 2004. Nothing has changed since then.

The 2006 Children and Adoption Act was intended to give the Court powers to help address residency and parenting time disputes "in the best interests of children". A wider use of Family Assistance Orders and counselling were intended to be among the measures to help assist in resolving differences, while community service orders would be a 'stick' should the abusing party fail to consider their child's welfare and need for both parents. Two years on, the Government still hasn't brought this legislation into force.

Parental alienation and repeated breaches to contact orders harm children. Such behaviour deprives a child of parental love and ongoing nurture and relationships with half their excluded family. Cognitive manipulation by the hostile parent causes confusion, anger, hurt and can lead to a distorted perception of relationships for the alienated child. There can also be feelings of abandonment which cause the child long term attachment problems which persist into adulthood and their adult relationships. Children learn from their experiences, and we encourage long term social problems each time we let a malicious parent use their child as a weapon. Our legal system wrongly rewards such behaviour.

Rather than punishing parents when the damage is done, the Government needs to consider preventative measures which reduce instances of parental alienation and hostility. The countries that polled at the top of the 2007 UNICEF Report into Child Wellbeing opt for the sharing of residence and care as the standard outcome post separation. Our own country, with our harsher, punitive and adversarial laws was found to have the unhappiest children in the developed world. Small wonder when we encourage parents to fight, and children to live in an emotional warzone.

The judiciary need to take a stronger stance against instances of broken contact and parental alienation, and accept responsibility for the problems caused by their judgments. It is time that Sir Mark Potter, the President of the Family Division of the High Court introduces practice guidelines to prevent the Court from having to publicly admit such failures in the future. How can the public have faith in our legal system when the most senior judges admit to its flaws and judgments are inconsistent.

There is no reason why shared residence could not be the default position under current legislation. Some judges do recognise the benefits of shared residence while others state publicly that 'shared residence orders are rarely made in this court' or 'I don't believe in shared residence'. Due to the lack of direction for judges it remains a lottery as to what judgment a parent seeking residence will receive. It depends on the judge's enlightenment or individual prejudice.

The legal profession need to be instructed through practice directions implemented by the Family Law Society to advise parents in every instance that mediation services are available to resolve residence and contact arrangements and disputes. It's scandalous that only one third of separating parents are made aware that mediation is a viable alternative (according to the Legal Services Commission in 2007).

There is a simple solution to the problems in family law:

• Shared residence being the automatic default position when parents separate unless there are proven reasons as to why such arrangements are unsuitable. This wouldn't require a formal hearing, but either parent could approach the Court's administration department making them aware of the separation. The Court would then issue a Shared Residence Order and a contract of arrangements and responsibilities for each parent. This would include the division of holidays, and a pattern of contact at each household to include weekend, holiday and midweek time.



• The contract of responsibilities would include information which sets out that neither parent should denigrate the other in front of the child, that such behaviour causes children harm, and provide the steps that the parents should take should they wish to vary the order.



• There needs to be an ending to the current pattern of weekend only contact for one parent while the other has the midweek time. The Government's own research has proven that children benefit from both parents being involved in their schooling, and this pattern of contact causes children to be educationally and developmentally disadvantaged.



• Parents could apply to the Court to step outside of these terms, but must self fund or self represent, and costs will be awarded against the party who applies if the request is deemed to be unreasonable.



• It should be made clear to parents that a variation to arrangements are their responsibility, mediation should be made freely available (divert the legal aid budget to make mediation free). This would mirror the system in Sweden;



• If parents won't follow this process, there should be three steps to resolution - 1. mediation - 2. community service (for the party in breach) - 3. sole residence awarded in favour of the aggrieved party. Parents should be made aware of these steps at the point of separation. The process for resolution via these stages should take no more than three months. Time is critical in a child's life, and too often the length of time that proceedings take leads to children being left in less than ideal situations;



• Allegations of abuse or domestic violence should be based upon the same burden of proof as exists in the criminal court. Within family courts the burden of proof is too low when allegations are made, which too often leads to miscarriages of justice. If abuse is proven, there should be punishment as a deterrent. If the allegations are proven to be false, the accuser should be punished. It must be recognised that false allegations of child abuse are unacceptable and can lead to significant child suffering and be an act of abuse itself.
  

To read the TimesOnline and Telegraph articles, click on the following links:

'Vengeful mothers leave good fathers powerless to see child, says judge.' - The TimesOnline

'Fathers powerless against vengeful mothers' - The Telegraph

Motion tabled on family law and incompatability with human rights

Paul Rowen of the Liberal Democrats has tabled a motion which seeks a resolution from the Parliamentary Assembly of the Council of Europe on the incompatability between family law in England and Wales and the European Convention on Human Rights.

The motion:

"The Parliamentary Assembly recognises that human rights are part of the Council of Europe’s key values. It recognises that systems are needed for the protection of children when they are at risk. The Assembly believes, however, that those who are tasked with protecting children need to be accountable for their actions and need to operate in a way which protects the human rights of those people they are dealing with.

The Assembly notes that there is substantial concern that the secrecy of the Family Division of Courts in England and Wales has caused the development of an environment in which practitioners are not properly accountable. It notes that a number of people have emigrated from England because they feel persecuted by the authorities tasked with Child Protection.

The Assembly particularly notes the use of Section 54.4 of the 1999 Access to Justice Act by the Court of Appeal in England which is preventing cases being considered by the Supreme Court in England and the way in which this acts to undermine the rule of law allowing the Family Division of Courts to operate in isolation from the wider body of law.

The Assembly recognises that questions have been raised as to whether the judicial proceedings in England’s Family Courts are compliant with Article 6 of the European Convention on Human Rights (the Right to a Fair Trial).

The Assembly also recognises that questions have been raised as to whether the system is also systematically uncompliant with Articles 3, 8, 10, 11 and 12.

The Assembly suggests that the relevant committee of the Assembly starts an examination of the system to which concerned parties can submit evidence of Human Rights abuses in England and Wales."

Note:
Article 3: the prohibition of torture
Article 8: right to respect for family life
Article 10: right to freedom of expression
Article 11: right to freedom of assembly and association
Article 12: right to marry

http://assembly.coe.int/Documents/WorkingDocs/Doc08/EDOC11583.htm

My thanks to Lisa Cohen of JUMP for this information and the MPs in question as a lack of accountability within the court service and breaches to human rights need to be addressed by this Government and the Ministry of Justice.

Grandparents Rights' Campaign - Safeguarding Children's Human Rights - Update

Seven charities representing mothers, fathers and grandparents have joined me in replying to the Goverment following their response to the Grandparents' Rights Petition.

We are asking that the Government reconsider our proposals that are designed to reduce the number of children being needlessly taken into care or placed for adoption. A child has a fundamental right to family life and to know its biological family. 49 MPs have declared their support for our response by signing Early Day Motion 1199.

There are too many instances where the extended family are ignored as potential carers for children when parents are unable to look after their children. Reasons for this have included the Government financially incentivising local authorities to hit adoption targets, and poor training of social workers and court welfare officers.

Hammersmith and Fulham Council have recently admitted to receiving £500,000 for exceeding adoption targets. Social Workers had announced this was possible by cutting down bureaucracy. One wonders if a part of that bureaucracy was an indepth consideration that the children might be better off cared for by grandparents. A further £17,500,000 has been awarded to other councils.

Daily Telegraph Article: 'Cash prize for council that hit adoption targets'

To see our response to the Government which the MPs are supporting, visit the main Custody Minefield website.

The Grandparents Rights' Campaign, as recently featured on BBC Radio Cumbria, BBC Radio Scotland, and BBC Southern Counties Radio. Three articles will shortly be published on family law and the current lobbying campaign.

Revised Factsheet - Special Guardianship Orders

For grandparents, kinship carers and foster parents. A more indepth guide to Special Guardianship Orders is now available on The Custody Minefield website.

http://www.thecustodyminefield.com/25.html

New Factsheet - Cafcass and Reporting Failures

A recent investigation and report into the East Midlands Cafcass Service highlights matters which a CAFCASS Officer should or shouldn't consider when writing a report for the Court in private family law proceedings.

The Ofsted Report into East Midlands Cafcass points out the following failures by the service. Ensure that the report into your own family circumstances does not also disregard best practice and use the information below as a guide (and information to refer either your solicitor of a judge to).

http://www.thecustodyminefield.com/8.html

New Factsheet: Employment Law and Flexible Working

Employers are legally obliged to consider applications from staff asking for their contract of employment to be varied to enable them to care for children under the age of 6.

I regularly come across separating parents who are worried as to how they can balance childcare commitments post separation with their work obligations. Kinship carers face similar issues. Many are unaware that they have a right to ask their employer for assistance or convinced that any request may cast them in a bad light with their bosses. Surprisingly, 4 out of 5 applications for flexible working are accepted either in full or in part.

I've written a new factsheet for biological, step, foster and adoptive parents, grandparents and other kinship carers to explain their rights to flexible working.

http://www.thecustodyminefield.com/3.html