Legal Myths
July 22, 2007 by familoo
A little pet project of mine is collecting nuggets of legal myth - the legal truths non-lawyers believe but which are really a slightly wonky version of the actual legal position. I’m interested in where these iterations of ‘The Law’ come from and how they get to be what they are. Any anecdotes are gratefully received.
My post on Common Law Wives is your starter for ten.
How about the myth that you are better off going through the family courts with legal representation rather than as a litigant in person?
Or that only 10% of separating parents resort to the courts?
Or that there is a presumption of contact in private law?
Or that court-ordered contact with fathers endangers children?
I’ll take these in order:
Better off going through the family courts with legal representation? - Sometimes yes. Sometimes no. Its not essential, but for many people its a help. I often advise clients that they are perfectly entitled to deal with hearings on their own if they are strapped for cash, and some clients quite frankly don’t need me at all, they are well able to fight their own battles. For others, who wouldn’t say boo to a goose or in cases where there is a lot of law - I’d probably recommend it. Maybe some people would argue you are always better off with a lawyer, but I’m not sure this is quite the kind of general misconceived belief I was thinking of.
10% of separating parents resort to the courts - don’t know where this figure comes from, I’ve not heard it before. Not a myth or a fact that I’ve heard of.
That there is a presumption of contact in private law? - I’d say in practice there is a presumption of contact, which Judges are increasingly keen to enforce. Of course its subject to the need to assess child protection concerns that have been raised prior to launching into a contact order that might put a child at risk - and thats often where non-resident parents get frustrated: allegations are raised and they cause delay whether or not they are genuine. Delay is a difficult one to solve - the courts and CAFCASS don’t have the resources to deal with things as swiftly as they should. So anyway, I’d say there probably is a presumption (which is no more than a starting point really) and its not a myth to say that this is the general position that Judges adopt nowadays. Even in the last few years I’ve seen a shift - Judges are always asking ‘Tell my why shouldn’t this child have contact with his Father?’.
That court ordered-contact with father’s endangers children - unless something has gone very wrong a court would not order contact with a father if it endangered a child. However, I suspect what you are referring ot is the fact that some parents refuse to accept the court’s judgment about what is in the best interests of a child (that goes for both Mum’s and Dad’s - most parents believe they know best, thats kind of hard wired). There are mothers who assert that court ordered contact is endangering a child - but if that is their assertion the onus is upon them to apply to vary / suspend contact and to make out that case. Again, once allegations are raised the court has a duty to investigate and this causes delay which can mean that, for a time at least, the allegation is enough to bring a halt to contact. But courts will see through this if it is a tactic wheeled out at every opportunity. In short - there’s no reason to think court-ordered contact would endanger a child, but it depends on the case. Circumstances change, so what’s appropriate when ordered may or may not be appropriate six months on, whether its a mother or a father asking for contact. I don’t think this is a legal myth since I’ve never heard anyone asserting that court ordered contact with fathers (or indeed mothers) endangers children as a general proposition, and of course we don’t know whether it might be endangering a child in any individual case (maybe because of a drug problem or a mental breakdown etc).
How about ‘Father’s have an inalienable right to contact’ or ‘Mothers want to prevent contact with Fathers’ - are they legal myth? Or aren’t they just assertions or generalisations that have no meaning when taken out of context and when not related to real people and real and specific facts?
Oh dear, I can see we have a lot of work to do, though as it is written elsewhere I won’t repeat it here; I’ll let you read our documents first.
(Surely if one parent didn’t want to prevent the other having contact there would be no need for Contact Orders?)
Here’s another possible myth I came across recently: that it is contempt of court to question or criticise a judgement in the family courts. I asked for the relevant legislation, which the person who came up with it has yet to provide. Any thoughts?
re: your myth - its not contempt of court to suggest a judgment is wrong.
Part of a barristers job is to explain to the court why a previous decision of another court is legally right or wrong and should or should not be followed. That’s not contempt of court.
However it might be contempt of court to do it in such a way as to insult the Judge himself (rather than the way he has applied the law) and to do so to his face.
Or to attempt to criticise a private judgment in public in such a way as to identify the parties or the child.
Oh dear. Nick Langford has a set of pre-conceived notions that he has picked up from somewhere (contempt to criticise a judgment? I’d have been in prison for the past 10 years if that was true).
Contact orders - if there was no dispute then there would be no need for an order. Often the dispute is about times, length of visit, holidays, etc and not about contact per se.
10% - I don’t know what the actual figures are but all of my divorced/separated friends have contact not arranged through the courts, often (as I am older) through multiple relationships (e.g. child of marriage 1 raised in marriage 2 has contact after marriage 3 with step father from marriage 2). There must be proper figures somewhere on this (ONS?) But why does it matter? Surely everybody is agreed that the best option is for the parties to agree and only if this cannot be achieved should the law grind into action in those extreme cases.
Implacable hostility cases when I was a pupil 10 years ago established that where there was no threat to a child the only circ where contact cold be denied to a father was where the psychological (or physical in the case of domestic violence) impact on the mother impacted on the child - and that was almost impossible to win. I should say that my partner and I have just been approved as foster carers and been told part of our job is to foster contact with both parents in our own home, so long as there is not an UNACCEPTABLE level of physical risk to us and the child. I don’t know where you are living mate, but it is not the world I am in.
The problem is enforcing orders, not getting the order (in general - obviously sometimes a wrong decision in a difficult situation can be made). In general almost any sanction against a mum will impact on the child which makes it difficult as it is surely counter-productive to the intention of dad and the best interests of the child.
BTW: Familoo - I noted your comments on the Home Page and have considerable sympathy but if we do not talk to people then they won’t understand and I applaud your efforts despite certain people being less than helpful and clearly not interested in a dialogue.
Myth - that precedent means lawyers never decide anything other than what has been decided before and so there is no flexibility.
Have my own answer but interested in whether non-lawyers subscribe to this myth and why.
Crimnaloo - I don’t think most non-lawyers have the depth and breadth of knowledge to necessarily consider this myth, however, activists and extremists seem to think precedence can be changed if they speak loudly and often.
Helene
http://themodernwomansdivorceguide.com
I had a bizarre comment today from a member of public they seemed to think that if you have a signed document it is “legal” whereas if they had reached an oral agreement that was “not legal”. I have no idea where they derived this knowledge. I had to explain that both forms of agreement are legally binding if there was a dispute without a signed document they face a harder battle in that the judge has to determine whether there was an oral agreement based on witness evidence.
Where to start?
PWCs taking their children on short holidays need permission from anyone with PR. (Rights of Women leaflet)
No restrictions on disclosing information given in divorce proceedings.
Spouse maintenance ends on cohabitation of the person receiving it.