It is rare for the family court to change the home of a child, particular a young child whose bonds with the parent with whom he lives are particularly important. Under section 8 of the Children Act 1989, such a change has to be made on the basis of the best interests of the child, with his welfare being paramount. There is a checklist for the court to follow, and such steps are not taken without good attempts to reach a compromise between the parents. Courts do not make such orders without welfare reports, often accompanied by expert witness from a child psychiatrist. One of the critical factors can be an assessment of how likely each parent is to support the child's relationship with the other parent, and the supportive parent is often able to demonstrate a better understanding of the child's needs.
There is a widely held perception that fathers receive a rough deal from the family courts. However recent research by the Nuffield Foundation 'How do county courts share the care of children between parents?' June 2015
) concludes that families only use courts as a last resort, and generally the courts are fair in resolving the issues over children, with similar success rates for mothers and fathers applying for their children to live with them.
Figures released by Cafcass (the Child and Family Court and Advisory Service) for May 2015 show a 34% increase in referrals of private law cases
to them, over the past year, with a total of 2,880 new cases. Cafcass is involved in all private law cases relating to children, not least to carry out safeguarding checks so that, at an early stage, judges are aware of any serious issues over children's health and wellbeing. Such an increase demonstrates the need for these resources, but can more be done by others too?
One of the real failures in the court system at present is the impact of the withdrawal of legal aid. Such court proceedings are expensive in terms of time and legal costs, and many parents are dealing without any proper help, which means taking matters into their own hands, and ignoring the courts.
It is unlikely that Ethan is going to remain hidden for long, and by her actions, Ms Minnock has made everyone more anxious and the necessary co-parenting of Ethan for the next 15 years (until he is an adult) more difficult. Proper support, from the courts, lawyers and from mental health professionals, is vital in such difficult situations, where real fears and pressures bring genuine anguish for parents and children.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.