Should the Courts micro-manage families?

25th February ‘19

There’s a growing trend, particularly in the Family Court, for judges to discharge themselves of the responsibility of having to resolve disputes between parents simply because they cannot be expected to ‘micro-manage’ the relationship between the parents and how their child is raised. The implication being that these parents should be able to agree these issues between themselves.

In an ideal world I would completely agree – but in such a world there would be no need for courts, judges or lawyers as we’d all just agree everything and live happily ever after; sadly that simply is not the case.

This much, if not overly, used term originates from the judgment given by the then President of the Family Division, Sir James Munby, in the case of T v S [2013] EWHC 2521 (Fam) which concerned the complete inability of two parents to do anything by agreement.

By way of a very brief overview, the case concerned a 6-year-old boy whose parents had been involved in litigation over him for more than 4 years. There was very little, if anything, upon which they could agree.

The court therefore made the child a ward of court, which effectively meant that the court’s consent was required before making any important decisions in the child’s life. The court then made a very detailed order setting out when each parent was to have the child and to delegate the exercise of parental responsibility between them, so they each had the responsibility for making certain decisions. Just a few months later the father made a fresh application because a new dispute that had arisen concerning the child’s dental treatment.

In dismissing the father’s application, the judge said:

“The court simply cannot micro-manage this very difficult relationship. If it sought to do so it would simply disempower the parents and add to the stresses on the child.”

Do I think that was the right decision; certainly not. If you cannot look to the court to resolve these disputes, then who do you go to? It was said that by constantly intervening in these matters the court would ‘disempower’ the parents, and that these issues are best resolved by one parent ‘stealing a march on the other’ and simply making the decision first. I personally cannot imagine a more disempowering scenario than handing over your child and not knowing what decisions will be made by the other parent by time the child is returned. This will surely just leave parents feeling even more powerless and victimised.

In my experience, it is often the small things that the court considers to be unimportant and petty that are the most difficult to resolve and end up escalating into something much bigger. I accept that in the cold light of day when these issues come before the court they probably do appear to be issues that should be capable of being resolved between the parties, but there is normally a lot more to it than that.

If both parents feel they are genuinely doing what is in the child’s best interests, then is it really so unreasonable for them to disagree on what the best course of action should be? There is also the deep rooted psychological and emotional baggage that exists in most of these cases when relationships break down and one or both parents feel resentment or outright hatred towards the other. This can sadly cause everyday logical and reasonable people to behave irrationally and in illogical ways. In these cases, the decision-making process is often less about doing what is best for the child and more about point scoring, retaining control and just being downright difficult for difficulty’s sake. Therefore, even with the best will in the world, it is never going to be possible for these parents to reach agreement because one or both of them may be pathologically opposed to anything proposed by the other.

I believe the approach currently being adopted by magistrates is wrong and actually enables parents to use children, intentionally or not, to harass, manipulate or punish the other parent for perceived wrongdoing arising from the breakdown of the relationship and/or to gain a financial advantage or leverage over them.

Surely these cases should be seen as a red flag to the Court and the Children and Family Court Advisory and Support Service (CAFCASS) that there may be deep rooted problems that go far beyond the petty or insignificant issues being raised, rather than sending the parents away to fight the matter out between themselves.

Unfortunately, the court system can often be very process driven and inflexible, so the same rigid approach is followed regardless of the application that has been made. I do feel that it would be extremely beneficial to have a two-tier court system for children proceedings, so that we have the current process for resolving issues such as with whom the child should live, spend time with or have contact, which obviously requires a much more in-depth investigation by the court, but also a more streamlined process for resolving the ‘micro’ issues. Where there are no welfare concerns for the child and the court is simply being asked to decide between option A and B, then I believe these issues are best resolved quickly at a single short hearing.

As things currently stand, if two parents cannot agree whether or not their child should, for example, attend football practice on a Saturday morning, then it is likely to take 6 – 8 months for the court to determine the issue at a cost of between £6,000 – £10,000+. That is of course unless the Court decides that it cannot be expected to ‘micro-manage’ this decision and just sends the parents away with a flea in their ear!

If you require advice regarding the arrangements for a child, please contact Naheed Taj, Head of Family – [email protected]

This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

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