The Failure of Lower Courts to Follow Precedent
First, we are dealing here only with the Laws of England and Wales. Scotland and Northern Ireland have different laws. However, English judges can take account of cases decided in other countries and occasionally (but rarely) might refer to Australian, American or Canadian cases too, although such cases have persuasive value only. Mostly, though, English courts concern themselves only with previous English cases. The previous decisions of higher courts bind the lower courts – well, at least in theory.
In practice, however, it seems that some lower court judges simply make it up as they go. How can they get away with this, given the well-established doctrine of precedent? Well, like this: the court will distinguish the case that they are hearing from the higher-court case, by using the simple mechanism of asserting that ‘all child cases are different’ and courts do want and need to be flexible, of course. To a point. But, as you will see, although all children are different, most cases involving children are depressingly similar. In particular, PA cases seem to run off a standard ‘template’.
You will see this template replicated time after time in the case law that appears on these pages. You would think, would you not, that someone, somewhere, someday might say “hang on a minute, we’ve seen this all before! How about a common approach, albeit one that can be varied in exceptional circumstances?”
This has not happened, and the courts repeat the same fundamental errors, time after time after time after time…And in the interim, our kids suffer. So do we.
This is how our Court System looks:
European Court (for the moment)
Supreme Court (Formerly the House of Lords)
Court of Appeal
High Court (‘Red’ Judge)
County Court (Circuit or ‘Purple’ Judge)
County Court (District Judge)
Most of us will be dealt with by a District Judge. This is usually a former barrister, but can be a solicitor. All PA cases should be dealt with by a District Judge, not Magistrates (who are not lawyers). If we do not like a decision here, an appeal lies to the Circuit Judge. If we do not like his or her decision, we can go higher, ‘leap-frogging’ the High Court, to go directly to the Court of Appeal. The Court of Appeal is where most important cases are decided, but occasionally their decisions are appealed to the Supreme Court. Rarely, very rarely, can those cases be appealed to the European Court.
At all stages along the way, you ask the judge you wish to appeal for permission to appeal his or her decision. This is usually denied on the basis that your appeal has ‘no reasonable chance of success’. So the first step of most appeals is to appeal the decision not to grant permission to appeal. Hmmm…
- Most cases go the way of the alienated parent (sounds great, but keep reading);
- The cases, though different in detail, contain many common themes from our ‘template’ [link]
Why do most Court of Appeal (‘CA’) cases go our way, and why is that not as encouraging as it sounds?
Most lower-court cases go the way of the alienating parent for several reasons:
- A vast majority of the cases that go against us (and our children) are decided in lower courts. They are rarely published or scrutinised. We are the hidden cases;
- Lower court judges quite often follow CAFCASS reports slavishly. But note that courts are not bound by CAFCASS reports, or experts’ reports…Higher courts are not so permissive. This is what Mrs Justice Parker says in Re H:
“The social worker, JW, who is warm, caring and committed, urges me to leave the children living with the mother because that is what they say they want. Until I enforced contact [UKAP’S emphasis] she was also saying that there should be no contact, because that is what the boys say they want. The proof of that pudding has been very much in the eating, on present showing. I have more than once stressed in this case, as in others, that the word used in the Children Act about wishes and feelings is “ascertainable” and not “expressed”. “Ascertainable” often means that the Court has to look at actions rather than words. The ascertainable wishes and feelings of these boys have been demonstrated by the evidence that they are more than happy to be with their father. I suspect they may feel some relief being out of the maelstrom. Their grandmother is calm and robust.
The Children’s Guardian also urged me to do nothing and not to intervene because of what the boys say they are not willing to see their father. She has done remarkably little as a Guardian. She has not read most of the papers, she hardly knows the boys. When it was put to her that if this was a case of parental manipulation and recruitment, then this could be or would be emotionally abusive to the boys, she took that on board seemingly, or at least superficially, but then said, “But the boys say they don’t want to go.” She was reminded that they were fine when they went on contact. “Oh,” she said, “but the boys don’t want to go.”
You can almost feel Mrs Justice Parker’s frustration bubbling off the page…
- In the Court of Appeal (‘CA’), the concept of PA has been described as “mainstream” and, in the Court of Appeal, it is;
- The only cases that get to the CA involve TPs that are extremely tenacious, patient, and, usually, wealthy. Other cases have already been ‘weeded out’ by lower courts;
- Cases that get to the CA can take years. How much patience/cash do you have? The problem is that even if you win the argument, the alienation is by now so deeply entrenched that your child will still not come and live with you. The child refuses. See the very disturbing cases of re A and re S. [links]. The problem is that you cannot begin to reverse the alienation whilst the child is still in the thrall of the alienator. And to move the child is often seen as too distressing for the child. Or, as in Re S the Courts take so long to ‘grasp the nettle’ that the alienation is too deeply set in, and the child will not cooperate with a move to the TPs home.
UKAP’S solution will not be surprising…Appeal!
How much of this is news to the powers that be? Not much – see this report from 2004.