A senior judge warned us all at the end of last week that the ‘sacred cow' of children coming first undermines the family courts and judges and that being uncritical about this approach leaves us with a system that is ‘flabby' in operation. Not only reported on this website, but the speech hit the headlines (such as they are on page 37 of any newspaper) in Saturday's Times - 27 November 2010 - and was reported as coming from a judge who has ‘form' for being outspoken. As we said here:
"It is not the first time that Mr Justice Coleridge has been outspoken. In a speech to a Resolution conference in 2008 the judge said that an 'epidemic' of family failure was 'as marked and as destructive as global warming'."
Well, I think global warming is a touch more dangerous and somewhat more immediate that any slow wearing-away of judicial authority. Back to this issue - with respect, we need a happy middle way on this so let's not go back to the days when children's voices were ignored (and happily so) - even if the learned judge is not alone in this:
"Although the judge was speaking in his own capacity and not on behalf family judiciary in Britain, he added: 'However, many I would count as my friends I know share my views although they tend to be rather more reticent about expressing them in public. In that respect I now no longer share their traditional restraint. Times demand more open discussion and debate.'"
I am sure that being outspoken in a traditional profession like law or at the higher reaches of the judiciary is not easy - raising one's head above the parapet is never easy, and likely to be a target even when you are right to do so. We do not want the old days back, though, we simply cannot return to the attitudes of only parents' views were taken into account and it being assumed that parents (or adults generally) knew what was best for children without actually asking children because not so long ago it was only the father's view that counted. We do need to consider the views of children. However - always a ‘but' - he has a point.
"As a matter of both fact and law, children lack capacity to make important decisions. That is why they are treated as 'being under a disability' legally speaking," the judge said.
"If we forget this and too readily impose the decision on the child, surely we, all of us, are shirking our responsibility to a degree which is bordering on the abusive. In just the same way as the weak and indecisive parent allows the children to call the shots we are abnegating our function to a degree which is nothing short of cowardly and unfair."
We have a finite amount of money for the legal system and should not waste it on going round in circles considering the possibilities if all that we are doing is undermining court decisions after reasonable deliberations. There are limits. Does the approach work further down the system? After all, all that most of our judges hear in rarefied court proceedings are the intractable High Court cases, which are hardly fair examples of family life and marital death in the UK. We need to ensure that all take responsibility for the ‘possible' in family life - after all, it will cost us all in the long run, one way or another.
Talking of responsibility - I was saddened to read (again, I have to say - he has been in the media earlier this year, but busy, it seems, since his last appearance) of the young man sowing his seed with alacrity around the north-east. Reportedly, (see Sunday Times page 8 on 28 November, 2010) this young man who will, come the summer of 2011, have fathered 14 children (not counting any conceptions from now on) with ten different women, lives on disability benefit and is 25 years of age. Most of the mothers are reported as being unemployed, so dependent on welfare benefits themselves. Five pounds each week is deducted from the young man's disability benefit to pay for the children - and presumably he is still at it. By comparison with the solutions that some political systems would come up with for this apparently uncontrolled and uncontrollable situation, taking a robust line on decision-making in parental disputes that get to court seems rather ‘tame'.
Quote of the week from the Booth household? "I'm not surprised he's got a bad back".
Penny sets the questions for Family Law journalCPD, a new way to gain CPD points by answering multiple choice questions based on the content of the journal.
She is an Honorary Research Fellow at Liverpool University Centre for the Study of the Child, the Family and the Law. Click here to follow Penny Booth on Twitter.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.