The judgment in the case of T v S (Wardship) [2011] was handed down on 27th May 2011 but only recently appeared on the BAILII Twitter feed. I was interested, not only because it is a judgment of Hedley J – a reliably intelligent and compassionate Judge – but because it seemed to be a horrible if clear example of how both parents can act to hurt their children. This issue had been part of a recent Twitter discussion about the apparent growing and polarising divide between those campaigning groups who see mothers and fathers in separate camps.

T v S involved a boy ‘H’ who ‘celebrated’ his fourth birthday at a court hearing. He was a ward of court so decisions needed to be made if this should continue, along with a variety of other issues about which the parents could reach no agreement. The court had a wealth of expert evidence before it, including psychologists and a paediatric surgeon.

As ever, there was no doubt that his parents loved H and had offered him some good care, but their relationship was ‘deeply conflicted‘ and had been since his birth. That conflict had ‘dominated his life and his care‘. There was a fact finding in 2009 where the Judge was unable to base any finding on the unsupported evidence of either parent, so serious were his concerns about their respective credibility.

Hedley J sums it up with his usual economical elegance

The difficulty in the case is that each of them has heard clearly what I have said about the other, but for the most part, have not heard what was said about them … The conflict continues unabated. The mother continues to make allegations which the court has found unsubstantiated in her discussions with other professionals. The father still has no chink of understanding about why it all went wrong in the first place so far as his behaviour was concerned…

The focus of the court had to be the child, not the ‘endemic and multiple’ adult disputes. Sadly almost every aspect of the exercise of parental responsibility was in dispute. The consequence of this was set out starkly in para 17 of the judgment:

Accordingly I propose to treat these parents has having forfeited their parental responsibility to the court. I intend to make far more prescriptive orders than is my usual practice.

It is clear that this is an unusual case at the upper end of the scale of parental hostility. This is reflected in the court’s decision that H should remain a ward of court because awarding a ‘residence order’ to either parent would clearly not meet H’s needs:

…. a residence order has assumed titanic status in the minds of the parties. The granting of a residence order to either or both of them is likely to be unhelpful to the future long term care of H…

The Children and Families Act 2014 sought to take the heat out of the ‘winners’ and ‘losers’ divide which some feared was promoted by making either ‘residence’ or ‘contact’ orders – the parent with the ‘residence order’ being perceived the ‘winner’. Having now experienced since 2014 the operation of their replacement Child Arrangement Orders I can confidently assert that the underlying tensions for parents arguing over where their child should spend time has been completely untouched by this change in nomenclature.

There are other matters which indicate how the landscape has changed since 2011. The Judge is clear there needs to be a review hearing in October 2012 because by then ‘either the family will have fallen apart and the local authority will have become involved or the family will have sorted out some means of co-existence.‘

It is an interesting question – would this case have been able to proceed in this way today? It is clearly an extreme one of its kind so I assume the court would still have been willing to consider wardship. But would there have been appetite for continued review hearings to keep the court as the arbiter of the dispute? It would be interesting to see the statistics for wardship post the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [LASPO]. One possible unintended consequence of removal of legal aid for private law cases could be an increase in a desperate resort to this jurisdiction as the strains of dealing with litigants in person begin to show. (See our previous comment on the McKenzie Friend who impeded the proper administration of justice).

I also wonder what the impact on this child would have been if Hedley J had not felt able to indulge such a timetable which kept the court as arbiter of the parents’ dispute. The prevailing view now post LASPO and the withdrawal of legal aid, is that private law disputes simply should not be coming to court at all and parents are encouraged to mediate. So what happens to those parents who just can’t or won’t ‘get along’? In my experience they continue fighting in court until their children are too old to be subject to any Children Act orders. Will we get to a stage where the courts are worried about significant harm and thus the only route is into care proceedings?

On an interesting side note about transparency, and remembering that it has taken 6 years for this judgment to find its way on to BAILII, Hedley J commented at para 33 that he was aware that widespread disclosure of the judgment may be seen to be an infringement of the privacy of the family. In 2011 the judgement was therefore disclosed only to the local authority who held a Family Assistance Order. In 2017 we now read it. H must be about 10 years old now.

The Judge commented that H, at 4 years old, was so far ‘emotionally undamaged‘ by the conflict. I remain sceptical about this kind of reliance placed on the ‘resilience’ of children but I hope very much the Judge was right.  I do wonder however how realistic it was to assume H had escaped unscathed from either of his parents, bearing in mind comments like this at para 32:

…. I am concerned about the parents’ capacity to provide partial or inaccurate reporting of what the court may have said or decided… I think, until a very much greater degree of calm has entered into this case, it would simply be completely unreal to accept that either party is going to seriously attempt objectivity in their reporting of the proceedings to any other interested professional.

Conclusions – clear limits on family court involvement to solve parents’ problems

Of course this case is extreme. Of course I don’t deny that there are sadly cases where it is often clear cut that one parent is acting to the detriment of the children’s welfare on very little provocation or reasonable excuse.

However, my point – which I accept I make with tedious regularity – is that the frequent need to categorise disputes about children in the family justice system as arising from the alleged systemic bias of the courts for/against ‘violent fathers’ or ‘manipulative mothers’  is a simplification which is often both untrue and unfair. Time expended arguing on which gender the court dislikes/promotes the most is time taken from proper, early analysis of the real issues before the court.

It must be very rare to find a case where one parent is 100% villain, the other 100% victim. I have never experienced that in nearly 20 years.  Life is usually much more messy and complicated. All relationships are a dynamic between two or more people and everyone within that dynamic has an opportunity of influence. To expect – as some seem to do – the family justice system to be able to untangle all of this, whilst at the same time asserting that courts are ‘always’ biased in favour of men or ‘always’ listen to the mothers, can be an entertaining diversion on social media but is not any kind of reflection of reality.

Feature pic courtesy of Chris Blakeley on Flickr (Creative Commons) – thanks!