What about the kids?

When judges find their homes targeted by angry parents it's time to . Clare Dyer meets one judge who is doing just that

Clare Dyer
The Guardian (UK)
Wednesday February 13, 2002

It's not easy being a family judge these days. Your home address is posted on the internet and mobs of unhappy dads who haven't seen their children for months or years picket you at weekends. At Christmas, Sir Nicholas Wall got a "very unpleasant" anonymous card sent to his London home "with a skull and crossbones on it reminding me of how many children I'd orphaned". In some countries, family judges have been killed by fathers driven to desperation by years of traipsing to court with nothing to show for it.

The statistic is stark enough: 40% of the children of separated parents lose touch with the non-resident parent within two years of separation. But behind it lie individual tales of human misery.

Finding ways to ensure that both mother and father can continue to play a full part in their children's lives after divorce is one of the biggest challenges facing the family justice system. Yet parents get surprisingly little help in coping with the upheaval divorce brings, and the services that do exist are not widely known about. Wall, who chairs a group advising the lord chancellor on the workings of the Children Act, wants to change that. The group's just-published report, Making Contact Work, is the first attempt to look comprehensively at ways of remedying a system which is acknowledged to be failing parents and children.

The act, which came into force just over 10 years ago, was supposed to take the heat out of post-divorce battles by getting rid of the idea of children as prizes to be fought over. "Custody" and "access", with their connotation of winning and losing, were abolished. They were replaced by orders for "residence" and "contact", but judges were told to make no order at all unless it was really necessary. Parents were expected as far as possible to sort out their own arrangements for their children. But it takes more than a change in the law to stop warring spouses from battling on in the embers of their dead relationship. Too often, children become both weapons and prizes.

"We've become increasingly aware that contact is a highly contentious and very difficult issue," says Wall, who practised at the family bar before he was appointed a judge in 1993. "What we've discovered during the process of consultation is that lawyers in particular had expected people to behave in a wholly rational fashion at a time when they were in the throes of what was often a very traumatic separation. We would expect parents to agree arrangements about their children, including contact, at a time when they were emotionally very, very fraught indeed.

"The law tries to apply a structure and a rationality which is not always capable of realisation because post-separation parenting is a fiendishly difficult activity, particularly if the parent who's left behind or the parent who has the children is then faced with a whole series of decisions - housing, money, finance generally, support. In that context, with all those anxieties and worries, to try rationally to make contact arrangements with the person you probably think has just betrayed you or who has been violent to you is enormously difficult."

The group began with the aim of finding new ways to enforce contact orders against parents determined to flout them, but quickly realised that they needed to focus on the point when parents first contemplate separation. The system first needs to educate parents and provide a range of services - such as mediation and parenting classes - to help them sort out contact arrangements. Only if those fail should the court need to get involved.

"What we've lit on as our first step is a widespread information campaign to try to inform people about the likely difficulties they're going to face if and when they separate, how their children will be affected by it and what they can do to limit or mitigate the effects of their separation on their children."

Most parents, Wall believes, are simply unaware of how harmful the effects of constant battles over contact or alienating a child from the other parent can be. "Most people who are adamantly opposed to their former partner or spouse having contact do so in the express belief that it's in the interests of the children. I think most parents live in the here and now and find it very difficult to see 10 years ahead when a teenager or adolescent will round on them for ruining their relationship with the other parent. People don't see that in the immediate fog of the separation."

The beleaguered new agency Cafcass (Children and Family Court Advisory and Support Service) would play a key role in providing information and help, and the report recommends a big increase in its budget. Money spent at that stage would produce savings overall, Wall argues, because there would be fewer expensive trips to court.

For the cases that do get that far, the group is convinced that the court needs a much wider range of power than it currently has. Resident parents - usually mothers - flout orders with impunity because they know judges are reluctant to use the only powers they have - fines or imprisonment.

Some are "implacably hostile", adamantly opposed to any contact by the other parent. Wall acknowledges that hostility is not always unreasonable - for example, if the father is dangerous - but says that these cases would benefit from a new power his group recommends to refer the case to a psychiatrist or psychologist. "If you're faced with that situation, as I have been many times, I find it absurd to say the only way I can deal with this is by sending the mother to prison or by fining her, when she's on income support.

"What we want are a whole range of powers which would enable people who know what they're doing - either a psychologist or psychiatrist or even a skilled social worker with a counselling group - to be able to educate and inform."

Other options available to the court would include community service orders and probation orders with a condition of treatment. A more drastic remedy, used sparingly in cases where the resident parent has alienated the children from the other parent, is to let the children move homes. "I have done it in one or two cases but that requires a very delicate process. What is very interesting, I've found in the cases where I've done it, is how rapidly the alienation seems to disappear. A child who a few weeks before had been saying, 'My father is a rapist and a kidnapper and I'm frightened out of my wits, I don't even want to see him I'm so frightened of him', in a month or so that child is happily living with his father - with very skilled therapeutic intervention, I have to say. It doesn't happen just like that."

The report has heartened fathers' pressure groups by the way it takes their concerns on board, though the Equal Parenting Council wants shared parenting orders as a matter of course. Wall is philosophical about the pickets outside judges' homes, though he acknowledges that the judges do feel vulnerable.

The Equal Parenting Council held a carol singing outside his home just before Christmas. "I wasn't there but I spoke to my wife and she said she'd make them some mince pies. My wife and daughter went out and talked to them and gave them mince pies and they sang some carols. One or two of them told my wife their stories, which were very sad, and they went away. I think they were a genuine group of very unhappy people who felt they'd had a rotten deal from the system."

· Making Contact Work: a report by the Children Act sub-committee of the Lord Chancellor's advisory committee on family law. Available from the Lord Chancellor's Department or on its website at

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