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Entries in family courts (5)


Cross border contact issues raised at Holyrood

Concerns about the issues that arise when separated or separating parents move between the jurisdictions of the United Kingdom were raised during questions to the Justice Minister in Holyrood yesterday (November 16th 2016). 


Kate Forbes (Skye, Lochaber and Badenoch) (SNP) asked Annabelle Ewing "What support the Scottish Government can provide to people from Scotland who are engaged in legal proceedings in jurisdictions outside Scotland.


The Minister for Community Safety and Legal Affairs (Annabelle Ewing): It is for individuals themselves to raise and defend legal proceedings in other jurisdictions.  In international parental child abduction and child maintenance cases, support is available from the Scottish Government’s central authority team.

Kate Forbes: Engaging in legal proceedings around divorce and custody in another jurisdiction in the United Kingdom can be challenging, especially emotionally and financially, and can cause significant damage to relationships between children and both parents.  How can the Scottish Government better assist parents who are dealing with child contact and residence orders between and across jurisdictions?

Annabelle Ewing: I acknowledge the considerable stress that is caused in cross-border cases, including cases across the UK jurisdictions.  The Scottish Government cannot provide direct assistance to parents who are dealing with child contact and residence cases in other jurisdictions in the UK.  However, we provide financial support to a number of family support organisations, including Families Need Fathers. In addition, we intend to produce a guidance circular for legal practitioners and others in Scotland on the existing provisions that govern the area in the Family Law Act 1986, which applies across the UK and applies to cross-jurisdiction family actions.  We will also continue discussions with our opposite numbers in the UK Ministry of Justice and the Northern Ireland Executive. For example, we have suggested that the relevant form that is used in family cases south of the border could be amended to ask the applicant whether there is a potential Scottish or Northern Irish dimension to the case.  I understand that the Ministry of Justice is amenable to that proposal.

FNF Scotland national manager, Ian Maxwell, commented:
"We are grateful to Kate Forbes for raising this important matter and look forward to this guidance becoming available.  Where there are problems of raising or enforcing contact or residence proceedings across international boundaries there are remedies within the Hague Convention.  But we are regularly approached for advice where one parent takes children from one part of the United Kingdom to another, even when there is a contact order in place.  There ought to be simple, speedy and inexpensive procedures available between the UK jurisdictions but our experience is rather different.  Relationships can be damaged or lost during the time the cases work their way through court and, as so often, the cost can be crippling."

Children were harmed by professionals failure to test false allegations of abuse

A recent English family court judgement criticised the actions of various professionals in dealing with allegations of sexual abuse made by two children in a cross border contact case. The children had been living in Scotland but were retained in England by their mother after holidays in summer of 2014. She had moved to England to live with a new partner.

Mr Justice MacDonald found that the actions of certain professionals on both sides of the Border actively contributed to the difficulties in assessing the evidence, 'materially prejudiced the welfare of both children' and contributed to the "significant" emotional harm the children had suffered.

These breaches included:

  • The social worker unquestioningly accepted the mother's account and her failure to make enquiries of the father, the extended families, school, doctors or local authorities "was particularly egregious in circumstances where such enquires would have revealed a fundamentally different picture to that being painted by the mother."
  •  A failure (by social workers, Detective Constables, Detective Sergeants and teachers) to keep accurate records of what was said by the mother and the children, resulting in accounts of what the children said that were diametrically opposed.  This included both Scottish and English police officers.
  • A repeated failure by numerous professionals to interview the children in accordance with the ABE [equivalent of Scottish Joint Investigative Interview] Guidelines, in particular repeated questioning of one child in the presence of the other child and their mother, and the repeated use of highly leading questions.
  • A failure by agencies to coordinate their intervention: between 11 August 2014 and 29 July 2015. Taking the CAMHS [Child and Adolescent Mentl Health] intervention into account, the children were questioned by no less than nineteen professionals on 44 occasions.
  • That ahead of any findings or criminal convictions in respect of the allegation, the CAMHS intervention extended to therapeutic intervention for one child by three psychiatrists and over 29 group therapy sessions and six sessions for the other child on the basis that they had been abused as alleged.

Mr Justice MacDonald quoted the conclusion of the children's guardian surveying the conduct of professionals in this case that "'It is as if a sort of hysteria took over and prevented people from asking certain questions'.  I cannot help but agree."

The woman had asked the court to rule that the man who raised the action to return him to Scotland where he had been the boy's primary carer had raped her and abused the children.

The judge concluded that every allegation the woman and children made against the man was false. She had 'told lies' and 'coached or influenced' the children - now aged 10 and six - into making false allegations. 

"In August 2014 the mother manufactured alarm using a falsified version of past events in an attempt to avoid returning the children to Scotland.  Using a combination of emotional pressure, inappropriate exposure to adult discussions and, on occasion, coaching, the mother proceeded to recruit the children to her cause. With the aid of repeated and persistent poor practice by a range of professionals the mother further succeeded in enclosing the narrative she had created within a hermetically sealed bubble, thereby succeeding in preventing professionals carrying out the checks that would have revealed that the allegations that were being made first by the mother, and then by the children required, at the very least, a critical and questioning appraisal.  Indeed, by reason of their almost entirely unquestioning approach towards the mother, a number of professionals simply acquiesced to their confinement in that bubble.  Had professionals adhered to well established guidance and procedure they would have discovered that the allegations lacked credibility.

It is important to recognise that the professional failures I have set out have had consequences. By reason of the failure of the relevant agencies to follow the clear and well established guidance and procedure the children were not only left in a situation where a parent was permitted to persist in conduct that was harmful to their emotional welfare but, by their omissions, those agencies actively contributed to that harm."   

Mr Justice MacDonald made the ruling in February but its publication was delayed until this month because the father was facing criminal charges connected with the allegations in Scotland. The Crown Office has indicated proceedings against the man have been dropped.



No evidence of anti-father court bias - or is there?

A new study of court cases funded by the Nuffield Foundation concludes that there is no evidence that family courts in England and Wales are discriminating against fathers.

Dr Maebh Harding, from Warwick University School of Law, reviewed almost 200 case files from 2011 and concluded that contact applications by fathers were in fact “overwhelmingly successful”.  

Right at the start of the research report, there is a worrying indication that the researchers were not approaching their topic with an open mind:

"Although the Family Justice Review’s Final Report rightly recommended against the introduction of any kind of shared parenting presumption, not wishing to draw any attention away from prioritising the child’s welfare." (our emphasis)

The use of the word "rightly" does not sit well with an unbiased approach.  Unfortunately what is a very interesting and useful study of the operation of family courts in England is undermined by an attempt to support the conclusion that "... the County courts showed no indication of gender bias in contested cases about where the child should live."

 As Glen Pool points out in an article in the Telegraph, "88 per cent of dads who applied to court for contact with their kids were awarded some kind of access. For example, 10 per cent were restricted to “indirect contact” with their children via phone, post or Skype; a further five per cent were only allowed to see their children in the company of a supervisor and 23 per cent were permitted to spend a few daytime hours with their children. I don’t know about you, but when I think of an “overwhelmingly successful” parent I don’t picture someone who is neither trusted to be alone with their children, nor allowed to wake up in the same house as them."

Read the research and decide for yourself whether it really shows that that fathers in the family courts are treated the same as mothers.  And although the study only covers English and Welsh courts, it is likely that similar findings could be made in Scottish cases.


Family Court reform picking up speed

The working group on family court reform convened by Lord Brailsford will be recommending significant changes to procedures in family cases.

In a speech last week Lord Brailsford indicated that the working group will recommend that much more of each case should be conducted on paper and that specialist family sheriffs should take responsibility for case management and impose strict timetables.

These measures should prevent ex-partners from using the courtroom as avenue for continuing their own unresolved issues.

He also supports greater use of technology in the hearing of evidence, including video- and tele-conferencing. He gave the example of a recent Hague convention child abduction case in which evidence was heard using on online connection with a party litigant in Melbourne.

Families Need Fathers Scotland has offered to give our views on court reform to the working group.

A change to Sheriff Court rules that comes into force on June 3rd is intended to speed up proceedings in cases involving disputes over the care of children.

Before a proof hearing, a case management hearing will take place in order to consider the issues.  Before that hearing parties will have to to meet to discuss settlement, agree matters not in dispute and discuss what should be presented to the sheriff at the case management hearing.

This should help to streamline the proof hearing, as well as exploring any possible resolution beforehand.


How Best to Find out What a Child Really Needs and Wants

In preparing for our submission to the forthcoming Children's Rights Bill, FNF Scotland is taking a look at what happens elsewhere in the world.

Peter Boshier, the principal family court judge in New Zealand, laid out his views recently on how children should be involved in family court cases concerning contact. 

His article, first published in the newsletter of the Association of Family and Conciliation Courts, emphasises that child custody cases are very different from other court cases and require a unique approach.

He sets out to consider how decisions can be made having regard to what children need and not simply what their parents want.

The first and most important point he makes is very relevant to the experience of Families Need Fathers Scotland:

"... resolution of issues for children does not benefit from delay. Cases take on a life of their own and status quo situations are often difficult to dislodge, even if this is grossly unfair to the children or one of the parties."

He goes on to mention the difficulties caused when parents present opposing views as to what arrangements should be made for the children, pointing out that:

"unless early intervention occurs, the perceived needs of a child become the issues as framed by the parents and, as bitterness settles in, the children’s needs and welfare interests become submerged in the parents’ perceptions... unless there is judicial intervention at an early stage, it becomes increasingly difficult to shift parental attitudes."

He concludes that the needs and welfare of children should be considered and reported on by a suitably qualified expert, who sees the children away from the influence of either parent and is able to put fairly and firmly to the court what that child wants.  In cases where children have been alienated or coached the courts must be alive to the possibility that what the child is saying is not really the child's properly held view.

Comments from anyone with direct experience of how the New Zealand system works would be very welcome - contact scotland@fnf.org.uk.