This is 'the Act', and lays down provision for the protection of children when a couple separate/divorce.
This says that when a court is deciding questions about the upbringing of a child, the child’s welfare needs shall be the paramount consideration. In considering the welfare needs of the child, the court
“shall have regard in particular to—
(a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
(b) his physical, emotional and educational needs;
(c) the likely effect on him of any change in his circumstances;
(d) his age, sex, background and any characteristics of his which the court considers relevant;
(e) any harm which he has suffered or is at risk of suffering;
(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;
(g) the range of powers available to the court under this Act in the proceedings in question.
OK, so all good so far, right?
Well, no. The problem is that CAFCASS and (almost necessarily) the lower courts usually say that the child’s expressed wishes are his ascertainable wishes.
This is wrong as Parker J has pointed out.
It’s pretty obvious surely that what a child says he wants is not necessarily what he does want. Indeed with PA and a ‘recruited’ child the whole point is that the child is speaking someone else’s words! CAFCASS need to ask perspicacious questions, not just “So, Johnny, what do you want?” – CAFCASS and some others see this as "putting the child first".
THIS is exactly as wrong as it can be.
Putting the child first quite often means doing the right thing for the child regardless of what the child says. It will be unpleasant, but it will be best in the long run – a point the Court of Appeal has made time and time again.
Also CAFCASS seem to think that para e) of Section 1 above should be interpreted narrowly as meaning ‘any short-term or immediate harm…’ Again, this is wrong. As mentioned above, the Court of Appeal have said several times now that the long-term welfare needs of the child (including of course the Statute-acknowledged need to have both parents in his life) ‘trump’ any short-term discomfort he might feel by contact, or a change of residence, going ahead. UKAP argues that a simple analogy is that although most children do not like going to the dentist/school/etc, it is in their best interests to go. In the same way, even if a child says that they do not want contact (albeit that they are fearful not of the contact itself but of the alienator's reaction to it), it is, regardless, in their best interests for them to have both parents in their life.
In short, kids don’t get to make the rules.
Children don’t know what is best for them. Indeed, most adolescents and indeed adults don’t! Why on earth would we trust a child to know the best course? How can a child possibly understand that chopping a parent out of their lives will be a bad thing for that child? Such an idea is the result of decades of woolly-headed thinking - thinking that has pervaded western society and the UK is no exception here. This kind of thinking, taken to it's logical conclusion, might insist that parents ask a baby's permission before changing its nappy!
Of course a child of any age is extremely unlikely to understand that having a parent removed from their life is in not in its best interests, but, apparently, neither can CAFCASS and a lot of judges. Amazing, isn’t it, when you consider the number of studies that have concluded that kids need both parents – and if they don’t have both mum and dad, it turns out badly for all of us. Such kids often grow into dysfunctional adults – they’re more likely to smoke, drink, take drugs and get involved in crime. Surely this is news to precisely no-one.
- European Convention on Human Rights
Article 8 says that it is a basic human right to have a family, to have the ‘society’ of children, parents etc. Alienators, and the courts, deprive our children, and us, of this right.
- Case Law
The law works roughly like this. We vote for MPs. MPs pass laws. Judges interpret those laws. Quite often statutes are unclear or cannot, with the best will in the world, cater for every eventuality. When those unclear moments or unforeseen cases come along, judges have to work out what to do.
The case law of England and Wales recognises the existence of PA (it is now ‘mainstream’), and that it is ‘extremely harmful’ to children.
The judgement of Parker J quoted with approval by McFarlane LJ in Re H  EWCA Civ 733 bears repeating :
“72. 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 she was also saying that there should be no contact, because that is what the boys say they want. …
73. 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 [our emphasis], or at least superficially [UKAP's emphasis], 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.”
74. I regard parental manipulation of children, of which I distressingly see an enormous [UKAP's emphasis] amount, as exceptionally harmful. It distorts the relationship of the child not only with the parent but with the outside world. ...
Bearing in mind the documented history of this mother’s inability to control these children, their relationship with one another and wholly inappropriate empowerment, it strikes me as highly damaging in this case. I am disappointed that the professionals in this case are unable truly to understand this message [UKAP's emphasis]. ..
Parents who obstruct a relationship with the other parent are inflicting untold damage on their children and it is, in my view, about time that professionals truly understood this.[UKAP's emphasis]”
Sounds good, huh?
Well, yes, if you happen to be in the High Court or Court of Appeal. Or before a particular judge.
The problem at the moment is that the message ‘PA is a very bad, and very real, thing that harms children and alienated parents’ hasn’t quite reached the lower courts or CAFCASS.
The problem is not with the law. It is simply that we have, for far too long, sacrificed the best interests of the child on the altar of political 'correctness'. Not only is this kind of thinking wrong and dangerous, it is cowardly, and places all of the responsibility on the child, giving the child an intolerable burden to carry.
The Laws of England and Wales are clear enough. They are not perfect, but, in essence, the statutes and case law, combined, say this:
- The child's ascertainable wishes 'trump' his expressed wishes
- All of the child wishes are 'trumped' by his welfare needs
- Long-term welfare needs 'trump' short-term welfare needs
What the case law (and the Act) does not say is that there should be a rebuttable presumption that the child spends 50% of its time with each parent. We have already mentioned White v White establishing that, where the marital financial assets are concerned, there is, in effect, a rebuttable presumption that each party gets 50%.
PARENTS HAVE EQUALITY WHERE CASH IS CONCERNED - SHOULD THERE NOT ALSO BE PARITY WHERE CHILDREN ARE CONCERNED?
Perhaps we value money more than children…