Judges and magistrates in the Family Court in England and Wales have to make extremely difficult decisions about what is best for children if their parents cannot agree on the arrangements for the children on or after parental separation or divorce. The family courts have seen a steady increase in such applications since 2014, with 55,645 private law children applications made in 2020 (Government Justice Data, 2021). While courts make great efforts to reach decisions that are in children’s best interests, there may be cases where the process and decisions do not best serve children and parents in this discretionary area of law. However, if there are problems with the process or decisions made, the public cannot usually know about this. Section 12 of the Administration of Justice Act 1960 stipulates that the publication of information relating to proceedings brought under the Children Act 1989 is a contempt of court. This legislation, which is intended to protect children, means that nothing about a case can be reported without the court’s permission.
“She said she was the mother of two little girls that he had sexually abused and subsequently served time in prison for abusing,” Julia says. “I literally jumped.” She recalls feeling “very confused, scared and in shock”.
When she confronted him, Robert was “blasé” about it. “He said, ‘Oh yeah, she’s friends with my ex-wife. Don’t listen to her, she’s one of the people who launched a hate campaign against me’.”
Most legal professionals felt the lower courts, where most cases are heard, are particularly letting down victims of domestic abuse and their children. Four out of five lawyers said magistrates have a poor or very poor understanding of domestic abuse and coercive control. One in three said District Judges also have a poor or very poor understanding of these issues.
More than 2,000 parents felt the judge was actively hostile towards them. More than 70% of both mothers and fathers were unhappy with the outcome. Sixty-seven per cent agreed or strongly agreed that their children’s mental health had been affected by family court proceedings.
Cases take on average 18 months to complete, with one in 10 lasting more than five years. The average cost of proceedings is about £13,000, though one in 20 said they had spent more than £100,000.
“It is essential family court judges, magistrates, professionals and experts have full, trauma-informed training on domestic abuse, as recommended by the Ministry of Justice Harm Panel, and are alive to the tactical use of accusations of parental alienation,” said Dr Barnett.
Fronted by journalist Louise Tickle, who has fought for transparency in the family courts for longer than five years, ‘Torn Apart – Family Courts Uncovered’airs this evening (Tuesday 20th July) on Channel 4’s Dispatches at 10 pm. Dr Barnett’s full final report publishes later this year. Read her interim report here.
Abuse victims, like anyone in relationships with high emotional reactivity, build automatic defense systems, which include preemptive strikes — if you expect to be criticized, stonewalled, or demeaned, you may well do it first. Victims can easily develop a reactive narcissism that makes them seem like abusers
The court will look at the parents’ lifestyles and stability to make their decision. They will also consider whether either parent has a criminal record, evidence of neglect or abuse, history of violent behavior, abuse of alcohol or drugs, and many other factors.
In order for a sibling to obtain custody rights, they would have to prove to a court that both of their parents are unfit or incapable in some way or that both parents are deceased. If the parents are not deceased, they will be required to state that they do not wish to have custody over the child
In law, there is no fixed age that determines when a child can express a preference as to where they want to live. However, legally, a child cannot decide who they want to live with until they are 16 years old.
Once a child reaches the age of 16, they are legally allowed to choose which parent to live with. The exception to this is where there is a Court order (such as a Child Arrangements Order) stating that they should live with one parent until, for example, the age of 17 or 18.
If you can come to an agreement with the other parent and your child, then this can help to avoid costly and lengthy Court proceedings.
However, if you can’t agree where your child will live and an application is made to the Court, the Judge will start to take your child’s wishes and feelings into account from the age where it is considered they understand the situation. This is typically from the age of 12 or 13 but will depend on the child and other issues such as any learning difficulties or disability.
The wishes of a child under the age of 12 may also be considered, but the Court is likely to give less weight to these.