Earlier this summer, a master-class of careful child-focused thinking went into a successful appeal against a sheriff ruling in a family court hearing. A sheriff is a Scottish judge.
The full report of Lord Eassie’s Inner House Court of Session (Re JM v PK  CSIH 54 is well worth reading in full for all who are interested or involved in family law. Here’s a good summary too.
Debate continues between those who think this is important progress and those who think it is a big step backwards.
A couple cohabited for six years, separating when their daughter was just one year old, four years before the appeal. The father had successfully looked after his daughter before and after separating. But the parents’ conflicts after that led to his refusal at one point to return the girl to her mother. This led to the mother eventually, in the sheriff court, pursuing and getting full residence and finally no contact at all with the father.
As a couple they both contributed to arguments and conflict. On a few occasions, the father raised concerns about the mother’s care. This was taken to be his further aggravation between them that affected the child, and also to be contempt of court. The sheriff used these as justification for cutting the father out of the girl’s life, the decision that was being appealed.
In July 2015, the appeal was upheld at the Inner House of the Court of Session. Lord Eassie, Lord Drummond Young, and Sheriff Principal CAL Scott, were clearly impressed by the lay representation of Ian Maxwell of Families Need Fathers Scotland.
Landmark or step backwards?
This has been seen as a landmark case and a textbook of child-focused law that shows how the paramountcy of the child’s welfare should be worked out. The case shows what a word like ‘aggravation’ means in more detail. In this case the final view seems to be that both sides found and gave the other aggravation. Accepting the appeal ruling means accepting that the previous ‘plainly wrong’ decisions of the sheriff court can also be considered to have aggravated the excluded parent. The father did not contact agencies about his childcare concerns frequently or without a particular reason each time.
Gendered assumptions may play a part in deciding whose view to uphold about aggravation. When families are in trouble, the dominant culture is to trust women more than men with childcare and the truth … even in a case like this where the father was evidently caring. The law is gender-neutral, but how far can courts be gender- or culture- neutral? If the excluded parent were a mother, it is a toss up which popular generalisation would hit the headlines: “She must have done something really bad to have lost her children” or “It’s natural for a mother to fight hard to see her children”.
Probably we would find both views … and everyone would pick a side based on feelings rather than facts. But facts here are hard – they’re subjudice, confidential and complicated. Data, it has been neatly said, is the plural of anecdote. But each anecdote is unique anyway. Which is why courts work case by case. Laws are general, but no case is.
It would be interesting to know now how far the conflict between the parents has been reduced by expecting shared care in place of stopping it. Even where problems continue, there are ways to manage handovers and contact to make them smoother without courts evaporating parents from the lives of their children.
Those who see this appeal decision as a step backwards fear that it opens the door to children having to suffer harm from their parents’ high conflict around handover and contact times especially. That viewpoint rates protecting children from the detrimental stress of their parents’ conflict over the harm caused by cutting off their relationship with their other parent, however safe and loving that might be. Single-parenthood is mostly assumed to be good enough for children – even without the other parent involved. And mostly it is presumed that it will be single-parent mothers for whom the benefits and support systems are mostly shaped to support.
As with many issues in this field, unbiased evidence is not easy to come by. So anecdote, personal experience, and ideology feed more heat than light on the debate. We have to try to keep calm, think hard, and talk to each other. As they should be, courts of law may sometimes be the one place to find that.
The report shows how meticulously constructed an appeal process has to be as it weaves its way through the records of the Sheriff court hearings (and only those records) and the minutiae of the laws. It all has to be within the limited remit of an appellate court. The Court of Session overturned the decisions that had been made by the sheriff and then the sheriff principal as “plainly wrong”, returning the case for a new sheriff to judge differently.
Essentially what Ian Maxwell showed in the Court of Session – building from the work of family solicitor, Billy Finlayson – was that there was no necessary reason for indefinitely terminating the child’s right to continuing evident love and care from her father, and continuing her relationship with him. The parents’ tendency to stir each other into conflict was not enough of a reason or impingement on the father’s relationship with the child.
Put that another way: If both parents contribute to the parental conflict – where both are safe and competent carers for the child – how does a family court properly decide the King Solomon question: Which parent gets evaporated from the child’s life?
A new benchmark
- Case law means that even one case will set a benchmark in all future family law cases in Scotland. That means that reading the full report of this case will be required learning for family lawyers, sheriffs and judges, not just a hope.
- Sheriffs, judges and judiciaries are notoriously and proudly independent of other influence. Their job is to interpret the law. Case law is a key lever. If something is not yet in case law, it is very hard to get new thinking into the case law. The logic is: “We’ve never had that argument before in court, so we can’t allow it now.” What is obvious to the rest of the world, may not be valid for courts. It is frustrating, but it is the nature of laws and legal practice to move slowly so that changes are justified not just fashionable.
- That means that this one case is of great importance. It may help drive the whole Scottish legal system to put into practice better child-focused outcomes. Or not – if you see it the other way.
- Child-focus has long been given loud lip-service – accompanied by questionable versions of ‘the child’s voice’ – while the underlying long-established custom and practice has rather trundled on.
- Note the power (in the appeal) of having Scots law be compliant with wider international laws. In this case: the European law on the European Convention on Human Rights (ECHR Article 8) and the child’s right to family life (ie with both parents).
- Elsewhere courts have to find other ways to make their case. For example, the USA have signed up (in 1995) to the UN Convention on the Rights of the Child (1990) but have never ratified it. Only if a nation ratifies it are they bound to it in international law with compliance monitored by the UN Committee on the Rights of the Child. The map here highlights that every member of the UN has ratified except one: yes, the USA. 20 years on, they have still not ratified it to join the rest of the world.
More lessons to learn
- The case shows why it is so important – and also shows how – to separate out the child’s welfare from any parental conflict.
- There needs to be cool clear thinking about the presumed effects of parental conflict on the child’s well-being balanced against the harm that might be caused by court orders that impose no contact with one parent.
- Parents too need to work hard on cool clear thinking – but better legal processes and decisions will help them stay calmer and clearer too.
- To interfere with an established family relationship, a sheriff needs to show that that is “necessary and justified in the paramount interest of the child”.
- Where safe care and a relationship evidently exists, “doing normal [parent-child] things” is a good enough answer to assume that good enough care is in place. They don’t have to give an academic description to prove they know how.
- Lastly, here’s a thing! It seems that a skilful lay representative has been able to do better than any previous family lawyer to apply the clear and well-known laws about children’s welfare being the paramount principle. Why have lawyers not done this before? They’ve been under orders to make the child’s welfare paramount for years. How have legal folks not got to grips with this principle when a layman did it ok?
- One wonders again about the self-perpetuating qualities built into any legal system and the fraternal loyalty of any profession between its members. Lawyers are formally required to put their clients first. The adversarial pattern in courts between parents’ and their lawyers is one result of that. But it is common knowledge that lawyers have one eye on ‘keeping in’ with sheriffs in court. A displeased sheriff is in a position to make a lawyer’s future career rather difficult.
Anyway, huge credit is due to those who worked so carefully to win this legal appeal. Of course, the story is not over yet – a new sheriff – perhaps by now – will be making a fresh determination. But the appeal decision will make a significant difference to the new outcome.
Each ‘side’ in the debate about whether this is a landmark case or a big step backwards can show evidence to support their views. The heat of conflict around separating families is repeated all the way up the layers of the wider systems that get involved. Clearly both sides do not yet have a complete grasp of what drives the parts of the whole picture.
What both sides at all levels need to do is to engage and learn slowly and doggedly about each other’s experience and concerns on the way to working collaboratively together again about something of the utmost importance: the children’s welfare. See Climbing the mountain for more on this wider strategy.
Nick Child, Edinburgh
News a year later (Nov 2016): Another glacially slow process in the Scottish courts produced a significant judgement about a child’s resistance to contact with his loving father. With 7 expert reports over 7 years, Scotland’s senior family judge, Lord Brailsford, took Professor Tommy Mackay’s evidence that the boy’s views about contact with his father were genuine “but that they are not independently formed views”. Read a summary of the case here – along with a fair enough ‘judgement’ of how long it took the courts to get there too, most of the child’s life. Read Lord Brailsford’s full judgement here.