Guardian/Observer

Observer campaign: families at war

'It makes more sense to forget I ever had a child'

For three months The Observer has been investigating the emotional fall-out of family breakdown. We have found a shocking culture producing routine misery on a vast scale for both children and parents. We have discovered wide-ranging inadequacies in the legal system: ill-trained professionals, badly prepared judges, and decision-making that is often a lottery. Part one of a three-part series by Dina Rabinovitch

Dina Rabinovitch
Sunday July 2, 2000
The Observer

'I was told it'd be a very informal meeting - that we'd have our heads bashed together and be told to grow up.' This is Edward, an investment consultant and father of four who is getting divorced. He is talking about a directions (or conciliation) hearing in the family law courts - an initial session in front of a judge.

The judge opened the proceedings by asking Edward why he was asking for residence. 'I said, "I'm not, the children live with me",' he recalls. 'She then looked very embarrassed, grabbed her notes and started frantically reading.'

The judge then told Edward she wanted to resolve the dispute that day. 'When I pointed out that my barrister said that wasn't the purpose of a directions hearing, she said "this is my court".'

Welcome to the world of family law, a world of uninformed decision-making, impatient judges and rigid court orders. In family law, judges have the widest discretion and are least restrained by precedent.

The thinking is that there can only be loose guidelines within family law, no strict rules, to allow for the 'uniqueness' of each family. But this results in a 'complete lottery', says one barrister specialising in family law. 'With family cases - and this is different from any other area of law - the judge is given this excuse to be inconsistent, quite maverick in approach, or even outrageous.'

What's more, this is a system which decides that the best people to carry out the central role of assessing parents and their children, the Court Welfare Officers, are professionals from the criminal probation service.

'People would come in on a Friday afternoon from working with criminal offenders, and start work as court welfare officers on a Monday morning,' says Alan Sealey, who last year resigned his position as chair of the Association of CWOs. He describes the service he left as 'a hell of a mess - haphazard and there's no training'.

'The Court Welfare Officer didn't seem to me to be a person who understood children at all,' says Dave, a builder, who was recently granted sole residence of his three-year-old son. 'She didn't seem interested in [his son] John, except about how much contact he had with his mum. In her report she wrote that "there weren't many pictures of mum around the house".' She might have wondered just how many people decorate their homes with photographs of their ex? (The amount of time a CWO will spend with a child varies enormously; there might be repeated visits or none at all.)

Lord Irvine, the Lord Chancellor, claims that fundamental changes to the system are imminent.

From April 2001, CWOs will be the responsibility of a new department, the Children and Family Court Advisory and Support Service (CAFCAs). But these 'fundamental' changes seem to amount to nothing more than a new home. (And nobody in the service seems to have noticed that the name seems, unfortunately - if aptly - to be a variant of Kafka.)

What's more, according to Mr Justice Wall, a senior High Court judge 'with all the administration involved we'll be lucky to have CAFCAs set up with a roof, let alone any fundamental changes'.

Those parents who do manage to gain an audience with a judge will face further problems. The standard divorce, money and contact cases coming to court, which are increasing in number, though divorce rates appear to have levelled off, will be heard by part-time judges and judges drawn from the county courts (traditionally known as the 'cut-price' or 'poor man's courts').

So what is going on in the family courts? Are they governed by a disdain for parenting, coupled with a particular suspicion of involved parents? Or perhaps still at work is the influence of a culture - the same one that sends its supposed elite off to boarding school - that does not understand children.

How else to explain the stories I was hearing all the time? Stories of judges ignoring women's concerns about domestic violence; stories of the fathers every year who kill their children during their post-divorce contact period. Stories of fathers given an hour a fortnight to spend with their children, post-divorce, causing damage that only those who have been separated from a child can understand.

I began taking an interest in family law following my own and friends' divorces, witnessing the reckless decisions I saw being taken about families' lives. At first, I couldn't believe what I was seeing. Some of the characters within family courts seem to come straight from the pages of Charles Dickens. Only in the family courts could one hear, as I did last month, the phrase 'in these very modern times in which we live, where some couples cohabit without marrying', uttered by a barrister.

Those going through the system are often rendered passive by it. They can see the problems but don't want their whole lives affected, so they choose to 'get on with things' rather than fight back. Or worse, they do fight back, and become manic, angered by the intricate injustices which, in turn, might result in them being seen as the problem.

Sarah Heatley's story (see the parent's story below) might offer an extreme case study. But every day routine misery is visited upon parents and children. Over the past few months, The Observer has been exploring the system, spending time watching these daily traumas unfold.

The mother, Iris, comes through the plate-glass doors of the family courts building first. She talks about what she thinks will happen that day at court. Her former partner, Dan, has sued for joint residence of their two children. Iris wants sole residence.

Iris imagines she will be ushered into a court room with a judge. She doesn't really see the day ahead anymore clearly than that. She knows she is paying 'around £600' for a barrister to be in court with her that day, whom she has not yet met.

There are tables in recesses along the corridor, off which the individual courts lead. The solicitor shepherds Iris to one of these tables, and the barrister arrives. Within the hour, Iris's solicitor, who has the most knowledge of her circumstances, leaves so as to save her client the hourly cost of her services and in order to get on with her own heavy workload.

Dan turns up, with a solicitor but no barrister. They sit at another table further down the corridor. The hearing is scheduled for 11am, in half-an-hour's time. A clerk comes out and says the judge is running a bit late. Iris's barrister reads her papers and says she will talk to Dan's solicitor, to see what can be negotiated.

The hearing in front of the judge never happens. The mother's barrister and the father's solicitor begin a whole day of back-and-forth, table-hopping negotiations, like over-active hosts at a gala dinner. This controlled frenzy is repeated all along the corridor, and indeed the other floors of this family court building, each time set in relief against the bleached-out faces of the mothers and fathers immobile at their separate tables.

None of the professionals - the solicitors, barristers, court welfare officers or indeed the judge - are surprised that the hearing does not take place. It is common practice for a hearing date and time to be fixed, but all the professionals involved come to the court premises with the knowledge that a discussion will take place in the corridors, rather than everybody going into court to put their case before a judge.

A 'settlement' is thus forced out of the parties under the worst possible circumstances - the threat of that great indeterminate, the judge, actually deciding the case. It is not a healthy environment in which to make important decisions about one's children. But it is very difficult, unless one is practising in this field, to get a clear picture of how it operates.

So much of what is going on in the family courts is secret. Family hearings are most often held 'in chambers', i.e. in private, and not reported. This is for obvious, but not insurmountable, reasons, and it means that much of what goes on is not investigated, or indeed challenged. And in fact, such is the pressure of family work that, around the country, any judge with spare time is pressed into service. On the one hand, lawmakers are talking about the need for an ever more specialised family court. But, in reality, the pressure of work means that pretty much any judge who wants to can obtain what's called a 'family ticket' - the right to sit as a family judge.

So parents expose their families to the mercy of whichever judge hears their case. Training, background, what a judge may have read most recently, will all be crucial to the outcome of the case.

Family judges have so much work ('10 cases on your desk each morning'), it can be hard for anything bar the most blaring of messages to reach them.

Last week a circuit judge, a perfectly kind and gentle person, told me: 'Quite often, you see a man, he tells you that "when we were married, she drove me mad, and I whacked her. I've never laid a hand on the kids, though, and I wouldn't." I must say, I find that quite compelling.'

If family court hearings were open, bad practice could be exposed much earlier. We would also all have at least the chance of a clearer idea of what constitutes family law and what fashions are being followed at any time.

According to Lord Justice Thorpe, in the early 1990s the Lord Chancellor's Department carried out a consultation about whether family justice should come out from behind closed doors, but the outcome itself was never published - a muffling of the secrecy inquiry worthy of a Blackadder script. But while the political shenanigans continue, parents - and children - carry on suffering.

A father fighting right now for overnight contact with his three-year-old daughter (and there are no allegations of damaging behaviour of any kind), told me: 'I've been pursuing this for two years now; last year I almost gave up - I thought it would make more sense all round for me to cut off contact completely and just forget I ever had a child.'

The child's story

Now 12, Jasmine was seven years old when her parents separated.

She did not see her father at all for a period of 10 months, following a court welfare service report recommending restricted contact.

She talks about being interviewed by a court welfare officer. After litigating for four years, her father established steady contact.

'It was a bit weird really - I was pulled out of my class, out of lessons to go to see him (the CWO). I didn't know what it was about the first time.

'He came to see me in school about three times, I think. He was stupid. He had these pebbles and he said one pebble was my sister, one was me, one my dad, and one my mum. Then he'd move my sister's pebble over to my dad, and mine over to my mum. It was rubbish. He'd say, do you want to live with your dad? You don't really know what to answer.

'I was about seven or eight then, I think, and I just said, "I dunno" or, "with my mum" or something.

'Things are good now, I see my dad quite a lot (alternate weekends, and Wednesday evenings), so I don't have to miss him that much.

'When the welfare officer asked me, I just picked my mum. I didn't know what to choose. I remember I felt like I was stuck, I got confused.'

The parent's story

In 1993 Sarah Heatley's ex-husband killed their two children, Jack and Nina, and then committed suicide, on his first unsupervised contact with them.

Sarah now has a four-year-old son, George. She was back in the courts this January, over contact with his father, Jan.

'Jan has shared care of his two older sons by a previous relationship. He always said he wasn't concerned with George, that it complicated things with his older boys.

'He would have George every Saturday for three hours. I didn't think it was worth staying in Sheffield for that, so I took a job in Colchester, with better pay.

'Jan applied for overnight contact with George. I said I wasn't happy with Jan's safety standards. The night I met him it was in a pub, and he'd left his 10-year-old son at home. But the case welfare officer (CWO) and judge recommended overnight contact.

'I felt that they thought, here is a hysterical woman, tread carefully. The CWO said to me, "I'm afraid we sometimes sanction contact, even when the circumstances are not ideal." I was told that I had to oblige, that it was in George's interests.

'In 1997, a television programme took me to meet the judge and the CWO who'd been involved with Nina's and Jack's custody. The CWO expressed no remorse or regrets - he just wanted to vindicate himself on film.

'When I told him I didn't want their father to have unsupervised contact, he'd said: "There's nothing to be anxious about."

'After the camera was switched off, the judge took me to one side and gave me his heartfelt sympathies. He hadn't known about Nina and Jack, until the TV people contacted him.

'He then told me he'd found out that my dad had written to him about it all, but his secretary had fielded the letter from him - to protect him.'

The barrister's story

'You go into court never knowing the outcome, or even knowing whether stuff that's been agreed by both counsel outside the court will be ratified by the judge. I can think of so many cases that just seem totally bizarre in outcome. For example, I once represented a father of four children. The mother had left, and was gone for two or three years, during which time the father cared for the children.

'Then mum reappeared and the father made an application for custody. We had numerous witnesses testifying to his good care of the children.

'The mother's counsel relied on the fact that she was the mother, but also the fact that she was white and the father black.

'The mother's counsel presented to the judge a report by an American academic, based on a survey, which said that black men by virtue of their race are unable to love their children.

'It was absolutely appalling, but the judge was listening to it all. I'm black, and I was spluttering throughout. The mother's counsel also played on the fact (and this is a ploy I've used myself) that the daughter would need a woman in her life as she approached puberty, and how dangerous it'd be to have a man look after her.

'Residence was awarded to the mother. We were appalled, because we knew she wouldn't be able to cope and would leave the children again. The mother's counsel in that case is now sitting as a family court judge herself.

'In a welfare case about a three-year-old girl, she was able to read, and the report said that therefore she couldn't be living in normal circumstances because normal three-year-olds can't read.

'The welfare report said mum should be taught how to interact more normally with her child.

'Our system is flawed in resolving family disputes and how we treat children. '

The process

When parents are unable to agree on residence and contact for their children, this is what should happen next.

Stage 1: One side makes an application under the Children Act

Stage 2: First appointment at court, usually called a conciliation appointment in front of a district judge, to discuss the issues. If agreement is reached, the district judge can make an order in the terms agreed. If there is no agreement, the district judge sets a timetable - gives 'directions', so this is also called a direction hearing - for the final hearing.

Stage 3: Full hearing, with witness statements and Court Welfare Officer's report.

Some of the names in this article have been changed.

Next week: The real power inside the system: the most senior judges speak, as never before, on the problems with family law.

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