Observer campaign: families at war
Courts leave children confused and parents feeling like criminals
In the second part of our series, senior judges and professionals talk to Dina Rabinovitch about the failings of a system that produces routine misery for all who are sucked into itDina Rabinovitch
Sunday July 9, 2000
Recently, one of the judges interviewed for this series telephoned. 'I wanted to tell you about a case I did last week,' he said. 'When the court welfare officer got into the witness box, one of the first questions I asked her was: "How long did you spend with the child?"
'If if it hadn't been for our conversation, I would not have asked. Anyhow, her answer came back: "About 45 minutes." I must tell you, I was absolutely shocked. In fact, I'd thought she was going to say... hours and hours, and I'd be made to look an old fool.'
The judge then asked the CWO whether, after 45 minutes, she had got to know the child? 'She began to splutter, and talked about the time constraints laid on her by her job,' he recalls. 'From that point I asked more and more questions and it became very evident to me that she'd done a very superficial report. What was interesting - and shocking to me - was that as I continued to examine her recommendations, she became more and more partisan.'
If a judge like this - an honest and intelligent man, prepared to phone to report the incident - had not previously questioned and examined the roots of the system within which he works, then how can anybody else rely on that system?
In family law a judge can make orders affecting the most intimate parts of life. That judge will never have experienced the living conditions of the family, nor will they see what effect the order has once the family leaves court. For that, he relies on court welfare officers within the criminal probation service.
The court welfare service makes much of the fact that, to become a CWO, probation officers now have a compulsory induction course. This lasts from three to five days. After that, there is in-house training, the service claims. This is scanty at best. For example, at the Court Welfare offices at the Royal Courts of Justice in the Strand - described to me by judges as 'the best court welfare service in the country' - budget constraints mean the staff get only three to five days extra training a year.
The court welfare service is the branch of the probation service that gets the most complaints. Those within it complain that 'the CWO is the punching bag for both sides'.
'It's a toxic job,' says Jim Lawson, Chair of the Association of Family Court Officers, who portrays the CWO as being 'caught in the middle of warring parents, looking to win, rather than at the best interests of their children'. Just in case the message is not clear, he adds: 'It's a bit like Northern Ireland.' It would be worrying to think that such a grotesque analogy might characterise court welfare thinking on children's issues. Spend some time with CWOs, and you become aware of a sense of inferiority. 'Nobody likes a court welfare officer,' you hear. Lawson mentioned the 'class system' within family law. 'You've got the judges at the top, and the social workers at the bottom. For example, social workers can be frightened when they go to court and they're faced with people who are power-dressed and speak a certain language.'
Yet so influential is the CWO's report that the only room for manoeuvre away from its recommendations is determined by a judge's discretion. (One of the few strict rules in family law is that a judge may not depart from a CWO's recommendations without adequately explaining his reasons for doing so.) But it was a recurring surprise how little judges knew about the training - or lack of it - received by CWOs. Basic training might help to eliminate episodes such as the following: Kathy (not her real name) escaped to a refuge when her children were tiny. Their father was a diagnosed schizophrenic, and violent. After many years - during which the children had no contact with their father - he attempted to gain access to them. The court welfare officer came to see the children at Kathy's house.
'He walked in and his very first words were, "I've seen your daddy and he's very well",' recalls Kathy. 'I was furious with him, because as the children grew up I didn't want them to blame themselves or me for him not seeing them. So, I'd always explained to them that Daddy's not well in his mind. The CWO couldn't have chosen a worse phrase.'
The Observer has spent the past three months interviewing judges at all levels, including Sir Nicholas Wall, one of the 16 High Court Family Division judges, and Lord Justice Sir Mathew Thorpe, an Appeal Court judge.
Thorpe, responsible for a scheme that speeds up financial settlements on divorce, was highly guarded. He insisted on having a press officer from the Lord Chancellor's Department present (with tape-recorder) during our interview. His answers were so bland and self-censored that it was hard to see his intelligent humanity, which only breached his guard once or twice. (Incidentally, Thorpe was the only family judge I met who has himself been divorced.)
Thorpe called the Court Welfare Service 'admirable', and said that CWOs 'made really perceptive recommendations or observations'. He argued that they 'get under the appearances to understand the family dynamics and to point the judge to the crucial issues, the crucial functions or dysfunctions in the family relations'. But how can the judge assess the CWOs work? 'Because as you get to understand the problem through sitting perhaps for 10 consecutive working days, and hearing individuals reveal themselves, you yourself acquire some understanding of the dynamics,' he said. All well and good, but very few trials go on for 10 days. 'Average would be something in the order of two days,' he said.
Thorpe also admitted being puzzled 'at the administrative arrangements whereby the court welfare service is part of the probation service - involving career moves from family justice work into criminal justice work. Seemingly, the career structure demanded it.'
In his courtroom, no 34 in the Royal Courts of Justice in the Strand in London, I witnessed Wall wrestling with the question of judicial discretion versus the 'case law'. The barrister cited an Appeal Court ruling to the judge. It did not sound a just ruling, and Wall didn't like it. He listened, and began to chafe at the knot of his tie, as if struggling with legal restraints. 'That's not a very attractive proposition,' he said to the barrister.
'Well,' he laughs, when we speak, 'I thought the Court of Appeal saying that a chap was entitled to keep his hands in his pocket and not pay if the woman didn't pursue him hard - I didn't find that at all attractive myself.
'If the man doesn't pay, it seems to be very hard to put the burden on the woman to pursue. But I'll sort that out,' he finished breezily.
'These things go in fashions,' he said, 'and fashions are dangerous.' Wall has been active in fighting one fashion: the presumption in the courts that it is best for children to maintain post-divorce contact with both parents. 'What happened, was that the need for the child to have contact overrode considerations to the contrary, particularly when there had been violence by the absent parent, usually the father,' Wall explained.
'All that I've done in two or three cases, was to say if a woman had implacable hostility to her former partner having contact, then that implacable hostility is not necessarily irrational - you can have rational implacable hostility.
'One of the bases for such rational hostility is if the former partner has treated either you or the child violently.
'I went one stage further than that, because I had a case which was an appeal from justices who'd refused contact to a violent partner. And although they'd got the law wrong, I upheld them. I said - and this was novel - that in these cases we're always saying to the mother of the children that you must put domestic violence behind you, you must look forward - he may be a good father even though he's beaten you up. We never looked to the man.
'The particularly chilling part of that case was the six-year-old coming back from contact, and saying to the mother, "Well, when I'm grown up I can beat you up".'
Wall has prepared a consultation paper for the Lord Chancellor on domestic violence. 'We had identified huge gaps in court-based information, and we asked how might that be improved. One of the recommendations that we will make is that there should be a systematic ongoing gathering of information about court orders and court procedures, but there should also be systematic research into the effects of different contact orders.'
If family court hearings were open, bad practice could be exposed earlier. We would all have the chance of a clearer idea of family law in this country - and what fashions are being followed at any time. In a recent article Paul Boateng, the Minister responsible for family law, said that the reasons for the secrecy in the family courts are so obvious as to not even need questioning: namely, maintaining the confidentiality of the people involved. Sadly, Boateng's eventual reply to weeks of delicate requests for an interview with me, was 'No'.
Both senior judges The Observer interviewed disagreed with Boateng's line on open courts. Wall and Thorpe both said confidentiality could be maintained by having judgments read out in open court, even if the hearings were in chambers.
Inside those chambers, Wall has applied his mind to attempt to get other judges to understand domestic violence. But most family judges are not dealing with such abuse, but with far more 'ordinary' residence disputes.
Yet those same judges who fail to understand glaring problems such as violence within families, are somehow considered able to dispense court orders to families with much more nuanced difficulties. It hardly amounts to justice.
'It was pointless. I don't trust adults any more': The families' stories
The son: Tony , aged 14
'It was all just a waste of time. A court welfare officer came to see me and my brothers last year. She came to see us at my dad's house, first. She came into the living room and asked my dad to leave. She said she wanted to get to know us. She left after about five minutes. All I remember her saying is, "Don't be frightened to tell me anything you might want to say".
'We saw her again at my mum's. She just sat there watching us, and taking notes. We were all sitting around, then we had some dinner and watched TV.
'Then we saw her a third time at her office. She interviewed each of us separately. She asked, "Are you happy with the arrangements, and if not, how would you like it changed?" And then she asked: "How do you get on with mum, and with dad?"
'She then wrote a statement on what we all said. I don't know if I was supposed to see it, but it was there, so I had a look. One bit of it was just titled Tony, about three-quarters of an A4 page. Right at the top it said, Tony is a credit to his parents. But then she wrote a load of rubbish. Basically, everything she'd written was the reverse of what I'd said. I remember she asked if I'd be comfortable [about something] and I said, no I wouldn't, and she didn't write that; she just wrote I should definitely do it. It was pointless. I don't trust adults any more.'
The father: Richard
Richard has three children, two boys aged 13 and 11 and a girl, aged 3. After his wife left him, she sent a letter through her solicitors saying she considered the children were better off living with him. A few months later she wrote again to say she wanted custody of the daughter. His wife then made a residence application for their daughter, which is when the court welfare service got involved.
'The CWO has now recommended that my daughter live with my wife six nights a week, and one night with me and her two brothers. She made this recommendation despite saying in her report that to split the family further would cause increased friction between the boys and their mother, which she also said should be avoided at all cost.
'I got in touch with the chief probation officer to say that the report's recommendation would be harmful to my children, splitting further close siblings. He said that, having read the report, he was somewhat surprised at the final recommendation. I then sent several more letters of complaint to the probation service. The chief probation officer then came back to me saying that, having spoken to the CWO, he did not agree with me.
'My case is coming to court in a few weeks. My solicitors have advised me not to complain about the CWO's report, but I have insisted. The assistant chief probation officer said, "We've never had a complaint before". There's actually no laid-down complaints procedure. A booklet I picked up in the probation office says, if you have a complaint about the welfare report, please refer it to the CWO.
'I'm an independent financial adviser; it's like me ripping you off with a dodgy investment vehicle and then saying you have to complain about that to me.'
The mother: Jane
'I got the letter to go see the CWO. The letter heading said Inner London Probation Service, and you feel, oh my God, you're dealing with a system you know nothing about and you feel like you're embarking on criminal proceedings. A part of me thought - is this what things have come to? Then at my son's school the teacher came up to me and said, "We had a letter from the probation service about Ben [her son]".
'The court welfare office felt like entering a prison. I think part of it is a juvenile court. The lifts are in these kind of wire cages, and the walls are that prison-green, and the furniture is sparse and dingy. I kept feeling, I have to do a good job here, I have to create the right impression.'
The names in this article have been changed
The professional's story
'I was a CWO for 13 years, and in the probation service for 30. The service I resigned from last year was a hell of a mess. Haphazard, with no training. Compare CWOs with nurses or lawyers, who have to have a certain number of hours of training and further education in the field every year. Court welfare officers don't have that.
'I fought for a separate, independent and properly funded court welfare service, and it is my hope that is what Cafcas [the Children and Family Court Advisory Service, the new home of CWOs from next April] will become. Hopefully, there'll be adequate training, though I don't know of any plans to institute such training as yet. It's imperative, because of the whole culture you get into when dealing with offenders. In the service in which I worked, the criminal justice imperative had priority. At least the new service should be wholly funded for family matters.
'I would like to see a new diploma for those becoming court welfare officers, with modular courses suited to intimate working with families. There are no plans for that yet, though some universities are proposing such a diploma. We need three things: first, properly qualified people in the service; second, a compulsory baseline minimum number of hours each year - say, eight to 10 hours - further training, and third, adequate funding.'
Alan Sealey is the former chair of the Association of Court Welfare Officers. He resigned his position in September 1999 to become co-ordinator of the Family Court Consortium.
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