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.
in response to familoo comment no 2 – :Re L (2001) should have created a presumption against contact in cases of proven domestic violence. Furthermore, the non-resident parent should prove that he or she is ‘fit’ to to have contact. more investigative measures need to be implemented to prevent the resident parent from making false accusations of domestic violence.
p.s – its the Green Paper ‘Parental separation: children’s needs and parent’s responsibilities ‘ that identifies that 10% of separating couples resort to the courts in relation to contact disputes.
Hi, Familoo,
Just come across your blog, so apologies for being late to this party.
There are loads of Data Protection Act related myths that must cross over into Family Law. Anything to do with photographs or videos of children seem to be surrounded in common beliefs that it’s all against the DPA. Most of these are debunked by the Information Commissioner now: e.g. http://www.ico.gov.uk/upload/documents/pressreleases/2009/dp_duck_outs_310309.pdf
What I often come across when advising on the use of school photographs is the former DfES 2005 leaflet “Guidance for Safe Working Practice for the Protection of Children and Staff in Education Settings.” I’ve given up trying to explain to schools that this is guidance and not law.
Hi Andrew – thanks for your helpful info. And welcome to the party (woo hoo).
My learned friend,
I am but an ignorant, opinionated hack. Like most hacks my knowledge of any law is minimal.
What exercises my mind confiderably at present is this.
I am completely confused about the law relating to family court identity and confidentiality iffues.
I have had, myself, an experience in the Family Court where I was darkly told by my own barrister that confidentiality was so draconian that under no circumstances whatever could I publicly mention any aspect of the case – even if anonymised. I was told that just mentioning the Local Authority concerned might be considered contempt as in theory it might lead to identity disclosure in some way.
Surely, if I wrote a story with all names changed etc, about a real case, sticking to the facts as heard from interviewees or even by me being present in court, but presenting it anonymously, as long as there is no overt identification, then I can write any story I like without being contempt ?
Viz: By invitation of the LIP I attended the High Court when a Local Authority sought imprisonment of both parents whose three children had been adopted (under what seemed dubious circumstances) and the natural parents had successfully sought out the whereabouts of said children.
His Lordship was informed by the barrister for the Local Authority that a member of the press was in court, whereupon his Lordship promptly made a portentious and threatening speech of great length directed pointedly in my direction.
The action broadly failed and there is a corker of a story that I have been too terrified to write. There are some other stories of a similar nature that really need to be told.
So, What does the law really say about all this ?
Is the changing of all names of individuals enough to be able to write such a story without being in contempt ?
Also, if a matter has gone before a family court, does that mean it can be publicly written about after a child is 16 anyway ?
Ditto, if a care order application of any kind has been heard and ordered in a family court, can it be publicly discussed if and/or when the care order falls away while the child is still a minor and before the child is sixteen ?
I am very confused as everyone I speak to seems to have completely conflicting ideas.
Boz,
Sorry I’ve taken such a long time to publish and reply to your comment. I had intended to write a post summarising the law in this area and direct you to that, but have simply not had time to do it. And now the law is changing. See here. The law is really quite complex in this area, but to summarise wildly: the existing position is that anonymising information is not enough, and that whilst some parts of the law apply only until the conclusion of proceedings (the identity of the child), there are quite broad restrictions on publishing information even after the case has finished and any order lapses (really any substance or detail about the case). I wouldn’t necessarily take pieces published by even the respectable newspapers as good examples of what is and is not permissible, as in my view they often publish more than the law actually allows. And when the new law comes in it will be more restrictive and more complex. If in doubt don’t publish or seek the Judge’s permission.
Disappointed by the very conventional lawyer attitude not being balanced by a more flexible blogger comment.
Another example of “erring on the side of caution” for the sake of PC gone mad over the basic freedom of speech.
Anonimity should be considered enough protection for the cherished principle of bringing to the wider public facts, on how, in particular, the Court system favours paperwork and procedures to simple human parental contact. It could even give latitude to some element of risk (you will avoid all road accidents by keeping cars parked!) in cases of parents with problems, domesic violence included (and please let’s start a debate on how to differentiate into degrees…).
The law is far too restrictive but it is so complex you might as well use that point to challenge it.
Boz, protect yourself with a written risk assessment for your own sake, file it with your article and do publish. No laws would have been disputed without members of the public and or the media confronting current issues. That is what has made the English society we live in today from Suffragettes to Gay rights. Gagging orders have never helped anyone, and children C, D or 95 have been much more affected by the sepration process than any ensuing media coverage.
My comment summarised the law, not my opinion on it. By all means Pascal publish at your own risk and in the knowledge that the maximum penalty for contempt of court is 2 years imprisonment (which actually means two years as there is no possibility of early release on licence). But its not for me to advise anybody to break the law or to suggest they should put their liberty at risk in that way – that would be a personal decision, which should be made in knowledge and not in ignorance of the law.
MYTH – That Lawyers are boring.
Very late rebuttal – look what fun we have in evenings reading legal blogs!
On the other hand…….
We’ve even created a separate website just on divorce myths! http://www.divorcemyths.co.uk
Familoo,
Thanks for restoring my faith in humanity ! I thought you were just ignoring my comment/request for elucidation.
But now your advice has been quite helpful; thanks.
But no thanks to the ghastly state of the law which was apparently so bad that I would not be able to write anything meaningful about various cases that need writing about and that it is only going to get impossibly worse with the 2010 act.
But tell me, if I write a novel – to all intents and purposes a complete work of fiction – that follows the exact storyline of a particular case, it seems to be the case that current and impending legislation would allow some manic social worker or other pompously politically correct nerd to bring an action against me simply because they have knowledge of a case in which, say, I myself was involved, and they can see I have written a fictional story that just happens to follow the same pattern of events of a real case.
Would I be right in thinking this ?
I can’t imagine circumstances in which a local authority would pursue committal proceedings for publication of a novel they alleged was based on fact, but I wouldn’t advise you to test out that hypothesis!
I do find this all very interesting, not least that family law seems so mysterious even between everyone one involved professionaly and incomprehensible to everyone else including families, press, MPs, Police et al, it seems more like a black art that everyone is forbidden to reveal the realities of and hardly a proper system of law that can either be understood or respected.
Why I must ask is there really the need for the family law system to be so grossly threatening to all and sundry to those that might talk about or publish its deficiencies even when in some cases they are criminally deficient? Something to hide? Not only can no one really see family law being “seen to be done” we cannot even hear about it.
I have never come accross such a vile and agressive area of society as some of the family law bunch at the lower end of the pecking order i might say , not including Familoo you sound quite reasoned, but then your under threat as well, even as an Barisster, if you raise the vexed questions so many are raising, you cannot really be open as you are professionaly bound, but then there is a senior appeal judge who has called some activity stalinist so there is some hope.
I would love to hear from Boz and I have learnt to have no fear of telling the truth quite simply in ways that do not break the law regarding law breakers, that is what we are talking about Boz, you have seen the law infracted quite seriously haven’t you?
I have read with interest the blog and comments above. I am going through a divorce which has lasted some 20 years, and not had contact with my children for 15 of those. There are six points I would make;
1.) Why in a divorce case is there no apportionment of blame for the breakdown in the marriage, and then this is considerd in the future ancilliary relief hearings.
2.) While the law pretends to address the interests of the children as a priority, it does not address directly the real practical issues and bring them into the open in court.
3.) Why, in later stages of the court cases, (I have had many), is the original point in 1. ignored. It is I propose to the convenience of the court and benefit of applicants who make repeated claims under legal aid.
4.) All of the law is written with a presumption of a claim on the father as a criminal. The setting of an unreasonable court order criminalises the father, this is then carried forward to all other court cases.
5.) Why does the legal law, and fmaily law, not get connected to the Human Rights act, and under the human rights act then the wellbeing and welfare of the father can be considered.
6.) The reason that all of the law is written in the favor of the ex-wife is because this is the flow of money – and with the flow of money comes fees.
I would challenge any one reading this blog to provide a single reference to a law, decision, or precedence, which protects, or raises for consideration, the welfare and wellbeing of the father. A ruling which says at some point an ex partner, or family, have to stop taking a father to court(s) across the land such that it has becomes harassment.
As a direct question (maybe without an answer) then if this is the case you (as lawyers and legal people) should look again at the main premise of the law and why you practice. Because without this, then surely the law itself is hypocritic.
Just for background, my ex-wife has married into a family of lawyers, children training to become lawyers, and others studying post-grad law at university – I am their research and practice project.
Kindest regards
In fact we still don’t have no fault divorce in this country – you cannot get divorced without blame being apportioned (unless its on the basis of separation for a specified period). Its just that the fault for the relationship breakdown is not translated into financial consequences in the ancillary relief proceedings (except in exceptional circumstances). That has to be right. I doubt there are many divorces which are really clearly the fault of only one party. How can courts disentangle the blame game at the end of a relationship?
Your questions appear to be predicated on the assumption that all cases of divorce involve a legally aided wife seeking ancillary relief from her ex husband in circumstances where the relationship has broken down through her fault. This is of course not always the case. The party who seeks ancillary relief from the more wealthy working spouse will often be legally aided, but your assumptions oversimplify matters.
The Human Rights Act is applicable to all courts and is applied in family cases. The welfare of the father is not a human right, although his right to family life is. Both parents and children have such a right, but they are not absolute and in cases tried by the courts it is sometimes necessary to prioritise the needs of the child over the rights of one parent.
I don’t know the details of your case (and don’t propose to start an exchange about it) but I think if you have been involved in proceedings for 20 years your case is exceptional in that regard. I hope that it has now concluded or that it will do so soon.
It has been said that pujury is a legal device for obtaining a divorce, that could also be said for children etc.
There is a court of appeal ruling that in family (child) law cases that there is no duty of care to the parents, this is summed up in “the child’s welfare being paramount.” This unfortunately means that all other commonly held rights and protections can be ignored and are.
I know people who have been involved in proceedings for 10, 12, 15 years.
Some statements that have come from family courts:
“The fathers desire for justice is laudable but not in the childs interests.”
“Facts don’t matter.”
“Your Honour the problem is: Neither the mother or her solcitor, nor the Local Authority, nor the Schools, nor the police respect court orders!” The Judges response: “Yes I know.”
“Your honour how can you make this adoption order when the high court has said there were no grounds for taking the child in the 1st place?” The Judges Response: “I have been told too!”
“You can have your child back when you stop saying the court is corrupt.”