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Family law system in the UK

From Academic Kids

The family law system refers to the laws, procedures and rules [1] (http://www.hmso.gov.uk/si/si1991/Uksi_19911991_en_1.htm#tcon) governing family matters as well as the authorities, agencies and groups which participate in or influence the outcome of private disputes or social decisions involving family law. Taking a systemic view of family law is regarded as assisting the understanding of the context in which the law works and indicates the policy areas where improvements can be made. In the UK, the family law system has been criticised for the following reasons.

Contents

1 Case Law

Court judgments not open to public scrutiny

A full analysis of facts on the issues is made difficult by the in camera rule that prohibits any reporting [2] (http://www.guardian.co.uk/child/story/0,7369,1180238,00.html) of family law cases in England, Wales, Ireland and Australia. The Court of Appeal, however allows the reporting of certain cases, provided the family remains anonymous. Fathers' rights campaigners argue that extending proceedings yet further by taking a case to the Court of Appeal is undesirable and hence rare, and that, whilst it is important to preserve the anonymity of all people involved in a case, there would be better protection against abuses if family court judgments could be published in the same anonymised fashion as Appeal Court judgments, and as is allowed in Scotland, which has slightly different family laws. See Father and Mother Appeal Court Judgment (http://www.courtservice.gov.uk/judgmentsfiles/j2253/father&mother.htm) for an example of an English Appeal Court judgment and for some insight into what can go wrong and eventually be put right in a typical case. Statistics are not published about cases that pass through the courts, leading to claims that abuses of the system are not identified and that there are effectively no quality controls. Those who wish to see this rule lifted claim that justice must be seen to be done, and this is not applied to family law cases. It is observed that a rule which was put in place to respect the sensibilities of children involved in distressing circumstances may have become a cloak behind which considerable inhumanity can go unnoticed by society at large.

Lawyers' vested interests

One claim is that early intervention (http://www.guardian.co.uk/uk_news/story/0,3604,1149787,00.html) is a far more effective approach, and that shared residency should be the presumed outcome of any agreement by consent or court order. Judicially led initiatives, such as have occurred in parts of Florida [3] (http://www.floridafamilylaw.com/parent.htm) and elsewhere, have demonstrated that where clear guidance is provided at the outset by the court about what the expected outcome will be, then this results in less hostility and therefore in a reduced workload for the courts. Fathers' rights campaigners claim that vested interests in the legal trade are politically operative to preserve lawyers' revenue streams from this type of business. Judicial powers already exist to endeavour to ensure that continuity is maintained in relationships between children and fathers. Interim contact orders can be issued before the establishment of a routine that excludes the father from the children's lives.

Adversarial court system

The current adversarial system, also dubbed winner takes all, such as exists in the UK encourages each parent to identify their fears, real or imagined, about what will affect their children now that the parents have separated. Some hold that when a parent expresses these fears about the other parent in this circumstance, even when fears are unfounded, they can nevertheless be treated as fact. Courts tend to be very particular about taking account of mothers' expressed fears, and then the father has somehow to demonstrate that he presents no risk to the children, and that the advantages that he will confer on them are real.

Fathers' rights proponents say that in such circumstances, the case can easily become a witch-hunt. Any aggression that the father may have manifested in the past is claimed to be treated as justification for limiting his involvement in his children's upbringing. If he is a man who is inexperienced at parenthood, perhaps due to value judgments about his background, or because this is a first child, the result may be that he is initially not trusted to provide basic care. In one case, for example, a father was restricted to visiting his child in a contact centre for six years, seeing his son for two hours a week without missing a single occasion, because of the mother's fears that he would otherwise abduct the child abroad. Even when he is able to demonstrate that he presents no risk, the mere fact of the mother expressing imagined fears can be used to argue that her fears affect the child and that the father's involvement should be restricted or eliminated [4] (http://www.guardian.co.uk/uk_news/story/0,3604,961940,00.html).

Most fathers' rights campaigners have had experiences that follow a similar pattern, and they are aiming that the law should be changed to prevent situations such as theirs arising.

It is further claimed the whole idea of adversarial court cases to resolve family disputes has led to a sub-culture considered by people who have encountered it to be completely absurd. A typical outcome might involve a father who is a teacher, and therefore trusted to teach a class of children, but who is nevertheless not allowed to see his own children.

Fathers' rights campaigners question the assumption that it can ever be legitimate for the state to collude in disrupting a loving and natural relationship between a father and his children. Bob Geldof has written eloquently and emotively on this subject:

I cannot even say the words. A huge emptiness would well in my stomach, a deep loathing for those who would deign to tell me they would ALLOW me ACCESS to my children—those I loved above all, those I created, those who gave meaning to everything I did, those that were the very best of us two and the absolute physical manifestation of our once blinding love. Who the fuck are they that they should ALLOW anything? REASONABLE CONTACT!!! Is the law mad? Am I a criminal? An ABSENT parent. A RESIDENT/NON-RESIDENT parent. This Lawspeak which you all speak so fluently, so unthinkingly, so hurtfully, must go.

Delay

Bob Geldof has written on this subject:

Upon separation, the system is slow and delay occurs immediately. This allows the status quo to be established. As the process labours on it becomes impossible to alter. This is unfair. It is nearly always possible for the resident parent (let’s face it, the girl) to establish a pattern. It is then deemed in the child’s interest not to break this routine. But at the cost of losing sight and touch of their father, we must really examine all our assumptions without fear. Then we can move to building a more equitable system benefiting all equally.

quoted from The Real Love that Dare Not Speak its Name: A Sometimes Coherent Rant

Fathers' rights campaigners point to cases where flimsy or dishonest arguments have been allowed by courts to result in unnecessarily long separations occurring between fathers and children during and after lengthy periods of court hearings. It is argued that effort would be better spent dealing properly with the trauma of the parents' initial separation and allowing the children to maintain their relationships with both parents continuously.

Case Law

  • [5] (http://www.courtservice.gov.uk/judgmentsfiles/j2466/f-v-m.htm) Mumby judgment: F v M RE D (INTRACTABLE CONTACT DISPUTE: PUBLICITY) [2004] EWHC 727 (Fam)
  • [6] (http://www.courtservice.gov.uk/judgmentsfiles/j2253/father&mother.htm) Wall judgment: A v A (Shared Residence, 4th February 2004)
  • [7] (http://forthesakeofthechildren.blog-city.com/read/633004.htm) Bracewell judgment: V v V (Change of Residence, 20th April 2004)
  • [8] (http://www.familieslink.co.uk/pages/law_ukcases_dvd.htm) Butler-Sloss: D v D ((Shared Residence Order, 20 November 2000)
  • [9] (http://www.courtservice.gov.uk/View.do?id=2946) 07/12/2004 David Blunkett -v- Kimberly Quinn
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