Abusing the Family Courts

In his latest and final thought-piece for Cansford, Family Law blogger John Bolch discusses rabbit holes, family court and the removal of children.

A couple of ideas for a post occurred to me last month, but I wasn’t sure that I could expand either one to a full post. And then I realised that the two ideas had something in common: abuse of the Family Courts, albeit abuse of two very different kinds. OK, having got that extremely tenuous connection out of the way, on with the two topics I wanted to talk about.

Secret evil agenda of the family courts unmasked
I know I shouldn’t do it, but once again I’ve been trawling the depths of Twitter, specifically my Family Law News feed. And once again I’ve come up with a couple of gems, demonstrating the high esteem in which our family courts are held.

The first came in response to a tweet I wrote about a judgment ordering the removal of children from their mother under an interim care order. The response read:

“This is another family court public advertisement which they use to remove children from capable caring parents when they need those childrem [sic] for their own secret evil agenda.”

Not going down that rabbit hole...

I almost never respond to this kind of thing, but on this occasion I was severely tempted to ask what exactly the “secret evil agenda” was, and what evidence they had for it, but I decided against going down that rabbit hole.

The second gem was in reply to my tweet about a case in which children were moved from their mother to their father, following a finding that the mother was preventing contact with the father.

The reply told us that: “Nearly all family court hearings are rigged, the outcome is predetermined and falsified.”

And it’s not just the courts that get this kind of treatment. In the same thread another commenter declared that: “Solicitors routinely instruct parents how to alienate.”

Now, when a solicitor takes instructions from their client they will assume that the client is telling the truth, unless it is obvious that they are not, and they will advise the client accordingly. Thus, for example, if the client says that the children are vehemently opposed to any contact with the other parent then the solicitor may quite reasonably advise the client that the children’s wishes may be a sufficient reason to stop contact.

But such advice is a far cry from instructing parents how to alienate children.

The best possible outcomes?

As anyone who has worked within the family justice system can attest, dealing with children cases, whether public or private law, is extremely difficult. Everyone within the system, including judges, social workers, Cafcass officers, and lawyers, works very hard to achieve the best possible outcomes. Mistakes can and will be made, just as they are made in any human-based system.

However, the suggestion that these people are operating a “secret evil agenda” is not just absurd, it is offensive. But it seems that such ideas are commonplace and may even be gaining traction, as we live in a time when the opinion of someone with little or no knowledge of a subject is valued as highly as that of someone who is truly an expert. Perhaps future historians will refer to it as the “Dunning-Kruger Era”.

Paying a fair price to use the courts
As someone who has the dubious pleasure of reading (OK, in some cases just scanning) most published family law reports I have often found it depressing that the vast majority of published financial remedy reports concern divorces involving the sort of wealth that ordinary mortals can only dream about.

These reports are depressing partly because the parties are often arguing over sums way beyond anything that they will ever need, and partly because most ordinary mortals simply cannot afford to use the courts, in particular the higher courts, from which most published judgments emanate.

But there is another thing about using our courts to argue over millions, or even billions, of pounds. No matter what you are arguing over in a financial remedies claim you will pay the same fee to use the court.
The current court fee on a financial remedies application is £313. And that is the same sum for all applicants.

Shouldn’t those arguing over more pay more?

After all, it is pretty well inevitable that big money cases will be more complicated, and therefore take up far more court time. (OK, with reference to the title of this post I realise that not paying more is not really abuse, but it certainly seems like taking advantage). I think they should pay more, and I have two ideas as to how this might be achieved:

1. Have the fee linked to the amount claimed, as in civil cases (if your civil claim is for up to £300 then you pay a fee of £35, whereas if your claim is for more than £200,000 the fee goes up to a whopping £10,000). Unfortunately, this idea does have a couple of downsides: firstly, you don’t always know what you are seeking in a financial remedy claim, and secondly, such a system could price out the less well-off party (the court could make a costs order against the other party, but that is after the event).

2. A better idea, without those downsides, might be having the fee linked to the amount of court time taken. This would involve the judge assessing the amount of the fee at the end of the case, and ordering one or both parties to pay it.

And whatever system is used, the money it brings in could be used to repair some of the dilapidated court estate, or even to reduce some of the existing fees, to make the courts more accessible for the less well off (I am sure, for example, that there are many people who can’t afford the current £612 fee to apply for a divorce, yet have too much income to be eligible for an exemption).

Just a thought.