Can the Role of the Judiciary in Family Courts be Improved?

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services

2011

Abstract

Can the Role of the Judiciary in Family Courts be Improved?

A.         Introduction

As an expert witness I am frequently asked to give an opinion to help the court resolve child contact issues in family courts. This advice is based on what I feel is in the best interest of children now and in the future, to achieve justice for both parents in their struggle for contact with their children. The Judiciary are faced with many problems in making decisions in relation to contact disputes and often the alienated parent feels that the decision reached is unfair. Some form of a solution needs to be found to help toward a more fair decision being found to solve this difficult problem.

It is, and has always been, my basic principle to provide the opportunity of both parents playing a role in the child’s life. This I feel is in the best interest of the child, and is always preferred, providing neither parent is an abuser sexually, physically or emotionally.

The Judiciary is faced with the problem of making the best possible decisions in often very complicated and emotional cases.  This decision is principally based on considering what is in the best interest of the child at the time when the case comes to court. Judges are often fully aware of the harm that has been done by the ploys used by the custodial parent to prevent access and contact between the child and a former loving parent. In reaching a decision, Judges need to weigh up the short and long term consequences of any action they recommend and there are rarely ever perfect solutions. This frequently leads to a judicial dilemma in seeking to resolve the issue of no contact with an absent parent because a child has been indoctrinated by the custodial parent against the absent parent.

As an expert witness involved in such cases I would like to present a possible solution or remedy, to cases where a child refuses contact with a former loving parent via a therapeutic intervention. This would appear to be the best route forward and is in the best interest of the child. It removes the child from having to take sides or to make decisions which no child should ever have to make.

B.         The problem

There has been much criticism levelled at the Judiciary in Family Courts most especially in the area of disputed contact issues and the decisions made. The Judiciary’s basic principle is again very similar to that of myself “what is in the best interest of the child”. Warring parents are the most prominent hindrance to Judges seeking to make the best decisions which benefit the child/children. The view that the child will in future seek out the absent parent against whom the child has been alienated is untrue.

Acrimonious divorce or separation are the principle causes of the lack of contact facing the non custodial parent. Many fathers and mothers eventually give up seeking contact with a child due to the implacable hostility to such contact by the custodial parent. The animosity, for whatever reason, which the custodial parent feels towards the now absent parent borders at times on a mental illness. The main symptoms are paranoid ideations, and extreme hostility towards the now non resident parent. The family of the absent parent are often included in this hostility.

While one is aware of the causes and consequences of contact issue disputes, making the right decisions is often extremely difficult for the Judiciary. The child in these cases is the main casualty, especially when that child has had in the past a warm loving relationship with the now absent parent. As a result of that parent’s absence, the child is frequently bombarded with negative statements and recollections via the custodial parent who seeks to ally the child with him/herself. The objective is to forget or castigate the absent parent. Let me illustrate this by an actual case sufficiently altered so as not to reveal its authenticity. As an expert witness, this is but one of the many cases in which I have been involved and also similar to ones in which I have not been involved for various reasons. The reason for not being involved is due to my basic principle that I believe that both parents have a role to play in guiding their child and being involved in their care.

Illustration

Mrs X won custody of child Y after an acrimonious divorce. She was eager to eliminate her former partner in the life of Y. She intended eventually to have another partner and let that partner be the father figure in the child’s life. She refused all contact between the absent parent Z and the child aged 10, who had in the past had a loving relationship with the now absent parent Z.  The absent parent and the child were affectionate towards one another and generally enjoyed each others company. Over time, the child was influenced totally by the custodial parent. The child eventually said that she no longer wished to see the other parent Z, believing what she was told about that parent. She simply could not, or would not be allowed, to remember the past wonderful days with parent Z. The good caring parent Z had been esponged in Y’s mind.

The expert witness in the case expressed much sympathy for the absent parent who had failed, despite great efforts and numerous court appearances, to have regular contact with a once loving child. The court threatened sanctions against the custodial parent if she did not co-operate with the ruling of the court in relation to the child having contact with the now absent parent. What the court did not do was to carry out the sanctions against the custodial parent who now claimed that it was not herself that was causing the problem but the fact that the child Y did no wish to have any further contact with the now absent parent Z. It does not take an Einstein’s reasoning to understand why Y responded in that manner.

C.        The Judicial dilemma

The latter illustration shows the problem faced by the Judiciary in seeking to make decisions which are primarily in the best interest of the child. Many Judges consider there to be great difficulties involved in changing the mindset of the child. This is despite the fact that the Judiciary acknowledges how this mindset came about in the child.

Frequently the Judiciary is faced with the terrible dilemma of knowing who the guilty party is in the process of the alienation scenario but are unable or unwilling to do what is normally the case in courts of justice…..punish the perpetrator. This is due to the fact that by punishing the perpetrator, who has carried out the disreputable and unfair act of turning the child against a parent, and who is also the custodial parent, it is the child that ultimately becomes the main victim.

The advice given by at least one psychological expert witness is to remove the child from the emotionally abusive influences of the alienating parent. Few Judges heed this advice. They consider such actions not to be in the best interest of the child. This is because the child is unaware how the implacable hostility of the custodial parent has succeeded in destroying the child’s love for the now absent parent and turning it into hostility toward that parent.

What numerous Judges do is to find a “fine line” and “balanced position”. They are aware of how an innocent child has been manipulated by a hostile custodial parent. They also consider the harm they will do by imprisoning the custodial parent for failing to abide by contact arrangements. Judges are also aware of the harm they may do by removing the child from a loving but emotionally abusing parent. Judges rarely, if ever, remove the child from such a parent and place that child with the abused non custodial parent. This however, is necessary in order to seek to renew the relationship with the absent parent who has been alienated and demeaned via the implacably hostile custodial parent. It is also to stop the child being further emotionally abused.

Judges therefore sometimes make decisions on the basis of ‘here and now’ evidence. The facts as they exist often are: 1) the child has been manipulated to the point where the child rejects the  now absent parent; 2) the Judge will tend to comply with the wishes of the child, despite knowing why the child has refused contact with a former loving parent; 3) Judges are aware of the difficulties of removing the child from the custodial parent against the wishes of the child; 4) they consider that this is likely to be detrimental to the child who has now only one parent with whom a strong, if not, total bond exists. The result is the child remains with the custodial parent while the absent parent has no contact. The longer this situation exists the more detrimental it is to maintain any future contact with the absent parent. It is  also often of detriment to the child.

D.        The advice of an psychological expert witness to the Judiciary

In cases of implacable hostility leading to a contact dispute between a custodial and non custodial parent, what is most beneficial to the child is of primary importance. On this both the Judiciary and the psychological expert witness are in total agreement. While the Judiciary will consider what is at the current time in the best interest of the child, the psychological expert is concerned with the long term implications of the child having no contact with an absent loving parent.

It must be added that when there has been a refusal of contact with the absent parent, this is  through no fault of that rejected parent. The child had a good relationship in the past with the now absent parent. The child’s decision not to have contact with the absent parent is due to a process of harmful influence. Such influence can only have become via the custodial parent and/or the custodial parent’s family. This has caused considerable harm to the child and may be considered at least an abuse of power of the custodial parent and emotional abuse towards the child.

We should never forget that there was a good relationship between the child and the absent parent in the past. Instead of encouraging this to continue, the custodial parent has undermined this in subtle and direct ways by disregarding the former partner and thereby reducing or eliminating good contact. Is this in the best interest of the child? On the contrary, it is in the very worst interest, with short as well as long term damage resulting from such abuse.

The Judiciary is likely to be aware of this, but as already stated, the child’s refusal to have contact with the absent parent puts the Judiciary in a conflict situation. The question asked is: “What is more damaging to the child? Is it to accept the child’s desire not to have contact because such contact has been undermined and the absent parent has been discredited or should or could contact be forced upon the child?

Even psychological experts differ in their viewpoint when this occurs. Some will concur with the Judiciary, and their decision considering it more harmful to the child to disturb the good relationship the child has with the custodial parent despite the fact that this is based on emotional abuse. Other experts, of which I am one, who are in the minority, consider the harm done to a child by accepting the ‘status quo’ is most damaging to the child, in that the child has little or no contact with the absent parent. On the whole, the Judiciary prefers the view of psychological experts who seek not to disturb the relationship between the custodial parent and the child, by punishing the custodial parent or removing the child from that parent.

It is the view of the current psychologist that there is a better course of action open, once numerous legal ways have been tried and have failed, to establish good contact between the child and the now non custodial parent. A middle approach is possible which could well have positive results. This consists of removing the child/children from the continuing emotional abuse promoted by the custodial parent based on the implacable hostility towards a former partner.

The child needs to be moved into care into a “neutral environment”. Here the negative influences and hence the emotional abuse can no longer continue. It provides the opportunity for all parties, including the child, to receive therapeutic input which is both positive and constructive. Initially there needs to be a warning to the custodial parent that this is being considered, unless that custodial parent actually encourages or insists that the child will participate with  structured and regular contact with the now absent parent.

Should this fail to be achieved, the removal of the child is imperative and for as long as necessary, until all parties realise and act in accordance with what is truly in the best interest of the child/children - this is to have good contact with both parents. Both parents should encourage this and work towards this end.

In the interim, the parents in the therapeutic environment can be seen separately and ultimately together if possible in order to establish a working relationship which can encourage contact with both parents. This is indeed in the best interest of the child. This should be carried out via Social Workers and involve CAFCASS as well as a Clinical Psychologist who is in overall charge and who understands the problems, and has the therapeutic skills to overcome the negative influences and truly establish what is in the best interest of the child i.e. to have good contact with both parents. Meetings between parent and child should be observed and supervised by staff. A written record should be provided and presented to the court.

In order for this to be achieved, the child and the custodial parent must accept what is being done and for how long this may be necessary. The animosity of the custodial and non custodial parents must give way to active co-operation and co-operation in the adhering to the decision of the Family Court over the arrangements of contact times. This again is in the best interest of the child.

Either parent who fails to co-operate or is seeking to continue with the emotional abuse should be removed from contact with the child until this ceases. At the same time, the non abusing parent should have good contact with the child in the “neutral environment”. In this way the previously warm relationship with the now absent parent can be rebuilt. This again is in the best interest of the child which is our main concern.

This approach in contact disputes, is fair, just and therapeutic as well as possible. It does not give in to the status quo of no or poor contact with an absent parent. It also prevents further emotional abuse of the child by the custodial parent, and is best for the child both in the short and the long term.