The Bias and Secrecy of the Family Courts Needs Urgent Rethinking

A few months ago, I came to the end of a very long time spent in the family courts. Current legislation prevents me from discussing my case in any detail.  However, I don’t mind admitting that when my solicitor told me that it was over, I cried huge tears of relief. The Family Court process, for those fortunate not to have ever been through it, is incredibly stressful and above all else, frightening by its solemnity. No one enjoys going there.

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 In the news recently there was also the story of Ellie Yarrow-Sanders, 26, of Basildon, Essex, who disappeared with her son, Olly, several months ago, a few weeks before she was due to give evidence in a ‘critical’ family court hearing. It is a sad indictment of our times, that I can fully understand why parents sometimes feel so exasperated by the system in this country, that they will go to such extreme measures as running away with their children, rather than accept and deal with the rulings of the family court.

Unlike civil and criminal courts, family courts are surrounded by secret draconian procedures that are never questioned or held to account. Like a kangaroo court, evidence is never verified, it is frequently fabricated or misinterpreted. When you first enter the courtroom, you are reminded time and again that any comments placed on social media by parties, will result in a heavy fine or imprisonment. In my experience, there is a huge bias in favour of fathers. The court sticks to stereotypical views of each sex: the father is the poor man who is being stopped from seeing his children and the woman is unstable, as well as vindictive and determined to punish her ex for leaving her.

The law treats the issues of maintenance and contact as being separate. The government department that controls the issue of maintenance is so haphazard and poorly run, that many self-employed parents can get away with paying nothing, simply because they have a clever accountant who make claims that their business runs at a loss. There is no checking of this and apparently the only time they will investigate such discrepancies is if an ex-partner can submit their former partner’s bank statements. So, it is quite possible that an absent parent can contribute nothing towards a child’s maintenance and yet still exert their right to see their child. I dispute this idea strongly on moral grounds. A lot of these systems have arisen in response to the few women who stopped their partners from seeing their children.

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CAFCASS are supposedly an organisation that look after the interests of children in family courts. However, like most Government agencies they are chronically underfunded and understaffed. They make huge errors, because it is not always possible for them to spend enough time with families. They produce a report which is little more than ‘He said and She said’ tittle tattle. The reports contain multiple errors, as after all they are only based on a 30-minute conversation with each parent. CAFCASS, claim to represent children and yet it is rare that they do speak to the child, as to do so would cause further expense on their limited resources. This system is so inconsistent that it can be down to something as simple as how you relate to your CAFCASS support worker and how they perceive you. Again, this system is biased towards fathers and it is also so badly monitored, that if you do question or ask for amendments on a report, then you are perceived as being difficult and this will impact on what the CAFCASS worker says in court about you.

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The Bench is made up of magistrates. Again, there is no consistency and continuity, it is pretty much down to the individual to decide the outcome of the case. Some magistrates might seek the advice of the appointed court adviser,  but the ultimate decision rests with each individual Bench.  It is impossible to know in advance how the Bench will rule. In my experience, magistrates tend to have an inflated sense of their own importance and frequently display evidence of a God-like complex. Even solicitors who have spent years practising family law, are often shocked by the decisions reached.

Every single government department is controlled rigidly these days by regulating bodies. I work for an exam board and that is controlled rigidly by OFQUAL. It should be. In Criminal Courts, judges are frequently held accountable for their decisions and there is an appeal system to check issues around sentences and verdicts. Judges must be mindful of how they instruct a jury, as again this may lead to a prejudicial trial.  So why is this not present in family courts?

The secrecy endemic in the family court is so contrary to the rest of our society.  The decision behind this is supposedly down to protecting children. However, I fail to see how the family court has protected some children involved in some tragic high-profile cases as that of Claire Throssell. Claire Throssell’s two sons were murdered by their father, who was not considered in the family court to be a risk, even though there was evidence of domestic abuse and violence. Claire has campaigned for judges to be held accountable for their decisions. There was also the case of Samantha Baldwin, a woman who went on the run with her children, again after the stress of a lengthy family court hearing.  A statement from the family court presented her as unstable. There is also the case of Ellie Butler who was returned to live with a very abusive father, who eventually killed her.

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The end of legal aid has caused even more difficulties for parents in the family courts. Since most can not afford a solicitor to represent them, this means that in a complex system that is designed for professionals, most parents are forced to represent themselves. An article in The Guardian in December 2018 by Amelia Hill claimed that only twenty per cent of cases are now represented. Those who represent themselves are classed as LiPs – Litigants in person. The Guardian article quotes a judge who claims that the system is now a complete nightmare “99.9% (of LiPs) do not understand what is going on in court or outside court; they don’t know a good point from a bad one; they don’t understand the law; they don’t understand what they have to prove and they don’t know how to ask a question.”  Because of this new trend for self-representation, there are also cases in which one person accused of domestic abuse can end up cross-examining the abused partner.

It is also imperative to consider that for most parents, these court cases come at a time in life when they are emotionally bruised and vulnerable. According to The Holmes and Rahe Stress Scale, a system by which doctors measure stressful life events, separation and divorce from a partner are ranked in the top three most stressful times in someone’s life.  Add to that the solemnity and complexity of the legal system, then it is no wonder that many people crack under the strain.

Transparency and accountability are two essential features of our Modern World and yet we still perpetuate the anachronism of the family courts. In the past fifty years the typical structure of family life has changed immeasurably. There is no longer a model of a typical family of two point four children and it is rare to remain with a partner for life. Thus, is it not pertinent to demand a debate on modernising the family court system to reflect the diversity of our times?

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