I have been a family lawyer for long enough to realise that there are often two sides to a story and so I am very careful when dealing with matters concerning children, not to validate my client’s at the outset so that we can explore alternatives instead of becoming more entrenched in a specific position. Often their views as parents are understandable but I like to try and get them to see how a judge may view their particular case or circumstances. Part of this process is exploring with my clients the alternatives to court that may assist in the parents ultimately reaching some level of co-operation with each other so that the child involved does not have to be exposed to their disagreements. I completely understand that this is very difficult for clients when they come into my office truly believing that their standpoint reflects what is best for their child.
Judges in the family courts have a very wide discretion to make orders within family matters provided they have carefully considered a list of things that is set out in the Children’s Act, called the “Welfare Checklist”. What one person thinks is good for a child may not be what another person thinks and we are all people with personal histories and opinions, no matter how hard we try to be objective about things. This is what makes us human, and judges are humans too.
The general approach of our judges is that:
- Contact between a parent and a child is a fundamental part of family life. It is almost always best for the child that this takes place.
- Contact between a parent and a child should only be stopped in exceptional circumstances where there are very good reasons for doing it and there is no suitable alternative.
- Contact should be terminated only if it would adversely affect the child’s welfare.
- There is a duty on the judge to take steps to maintain a relationship between a parent and a child or to restore it when this has broken down. It is a very difficult job for the judge in many cases as he or she needs to ensure that contact is only stopped as a last resort and if he or she is certain that this is the right outcome for the child.
This all makes perfect sense and I doubt that many parents would disagree with these guidelines. It is when you have to apply the facts of a particular case and look for the appropriate practical outcome for it, that things become more difficult. For example;- What about the situation where one parent appears to be actively trying to turn the child against the other parent?
I would not like to be a judge in many of the cases that they have to deal with concerning innocent children, where the decisions that they make, or don’t make, could determine the future course of that child’s life. This is one of the reasons why the judge has the assistance of a social worker, in this context called a CAFCASS officer who will investigate, interview the parents and sometimes the child and provide a written report with recommendations to the judge. Judges are not bound to follow the recommendations but they would need to provide good reasons why they chose not to.