Ethical Considerations in Family Law

The Right Honourable Dame Elizabeth Butler-Sloss GBE

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I want to talk primarily about children and their place in our society. But to talk about children requires me also to venture some comments on those around them, their parents and others who take over their care. These are thoughts I have largely based on many years of seeing children in the courts as well as my general experiences of children.  I do not propose to say anything about the substantial minority who live below the poverty line or the problems of children with disabilities, important though those issues and many other child issues are, but to comment briefly on children’s rights and look at certain groups of children whose rights and welfare are not, in my view, sufficiently recognised in our society. I shall look at children whose parents divorce or separate, who witness violence, denigration or intimidation by one parent towards the other parent, who are taken into care usually because of some form of abuse or neglect or who offend.  I am not sure how far these are ethical issues but we should accept a moral obligation towards children within our community, not limited to our own children. I want to raise issues which ought to be widely and thoughtfully known and considered. 

Children’s Rights

I suggest that we have an ambivalent approach to children and we find it difficult to treat them as people. We love them, are proud of them and indulge them  - look at Hamleys toy shop in Regent’s Street just before Christmas or similar toy shops across England. Most of us take care of our children and do a good job but I wonder how far we see them as separate individuals rather than extensions of ourselves or, if not pleased with the child, extension of the other parent’s family. I am suggesting that many people see children to some extent as possessions, as they were undoubtedly seen in the 19^th century and the first part of the 20^th century, and do not recognise that children have rights as well the need to have their welfare recognised and looked after. When I wrote the Cleveland Report in 1988 I expressed my concern that children, the subject of care proceedings, were not seen as people but as objects of concern. I believe it to be largely true today. The European Convention on Human Rights, drafted in 1950, does not refer to the rights of children, an alien concept 55 years ago. The European Court at Strasbourg has, however, interpreted Article 8 to include the rights of children. The United Nations Convention on the Rights of the Child, of course, specifically recognises their rights which are set out in some detail.

Rights do not give children the right to expect to be indulged, to commit crimes, to dictate to parents or to others. Nor do adults have those rights. But children have the right, among others set out in the UN Convention, to be recognised as people and for their point of view to be listened to and to be given the appropriate weight. For example, in the family courts in England and Wales, the judges have for many years adopted a paternalistic approach that children should not go to court and should only be heard through the welfare, CAFCASS ,officer or guardian unless old enough to instruct their own lawyers. Although in many private law disputes between parents, children do not want to be asked to choose between their parents, increasingly children and not only older children want the opportunity to tell the judge how they feel and what they want. In care cases it is probably not what they are likely to get but at least they should be heard.

In Germany the Constitution requires the judge to see the child, however young and ascertain his views. I would not suggest that course here but I wonder if the approach of the judges is not somewhat patronising and whether we should try to make arrangements for children to be listened to when their future is being decided in a court. I do not, however, underrate the difficulties but we should try to get round them.

Several years ago the NSPCC did research on the child protection system and invited children in care to comment. They received over 700 responses which they published in a report entitled ‘Your Shout’ which is instructive reading. The children made it clear that they were extremely keen to have their feelings and opinions heard, to tell the adult world about what it meant to be in care, and to voice their feelings about the changes they would like to see to the system. It is a sobering reflection on our system that less than half of the young respondents said they thought they had been listened to and their rights had been respected.

Marriage

One most important aspect of a child’s welfare is the need to grow up in a secure and stable environment and to be loved and cared for. Welfare does not require financial advantages, although those living below the poverty line are deprived of many of the basic needs. The most secure family is achieved through marriage. This is the strong belief of Christians and equally of Jews, Muslims, Hindus and Sikhs.  Outside the religious view research has demonstrated that marriage remains the most stable of all relationships. Cohabitation, although many couples may live together for a lifetime, has an average span of three years. Marriage is supported by all the major religions and one element of that support is that the stability of the parental relationship is of crucial importance for the best upbringing of a child.   I am, of course, well aware of many couples who do not marry but who have successfully brought up a family but I am looking to the general and not to the particular. 

I cannot resist offering you a realistic if not very kind approach to the state of marriage: 

“If you cannot have your dear husband for a comfort and a delight, for a breadwinner and a crosspatch, for a sofa, chair or hot-water bottle, one can use him as a Cross to be Borne.” (Stevie Smith 1936).

Marriage is now said to be under threat. Recent statistics show that the trend in marriage is declining year by year and the press has recently been full of dire forebodings about its virtual demise within the next 20 or 30 years. It is predicted that within a short period of time more children will be born out of instead of within marriage. If marriage is, as I believe it to be, the most durable and desirable of partnerships, this is a sad prospect for children born in the future. It will be interesting to see whether research in several years discloses the extent to which civil partnerships may provide a similar pattern of stability. There is the opportunity for civil partners to offer real commitment to each other.

The Government speaks of support for marriage but there is no active support by Government and from a fiscal point of view there is strong discouragement. The Government has published excellent Green and White papers on helping parents and children after breakdown of relationships but it has done nothing practical to support married couples. In the past married couples enjoyed tax concessions which have been withdrawn. There is no financial incentive to marry or remain married and a financial incentive not to marry.  This outcome contributes to the down grading of the status of marriage. It was however suggested to me recently that there is also no support for couples to live together and it is more financially beneficial to live apart. Since a large proportion of people have children and children need stability and the security of a two parent family, the trend towards single parent families, especially among teenagers is also very sad.

If the statistics are right marriage should be supported for the benefit of the children, for practical reasons such as the saving to the State and to the community of the cost of non-stable relationships. The cost is difficult to measure but it includes the resource implications of litigation between some parents after failed relationships which may go on for years and years and fills the courts and the consequences of the failure of the parents’ marriage upon the children. I would, therefore, suggest that to support and encourage marriage and the continuance of marriage has financial, as well as other, benefits for the wider community.  .

Divorce

I do, of course, realise that marriages like partnerships do not necessarily survive and spouses divorce. At least 150,000 children under 16 have parents who divorce. It is said in the USA  that a third of children whose parents divorce go through two divorces before they are 18 and the UK seems to be going that way. For most divorcing parents with children fortunately there is little dispute over the future of the children.  The absence of dispute does not mean that the children are unaffected by the divorce.  Parents in the process of divorcing often seem unaware that their children love them both and want and need both of them.  The residential/custodial parent often is unable to accept that the child continues to love the parent whom s/he cannot wait never to see again. The children may very often not be told what is happening or be consulted as to what they would like. There is no point in arranging contact with the father from Saturday lunchtime until Sunday evening if the boy belongs to a football club which plays on Saturday afternoons, unless the father takes him to football.  But football or ballet classes or Hebrew studies should not be allowed to be a barrier to contact with the other parent. A disturbingly high proportion of agreements between parents ignore the right of the child to have a continuing relationship with both parents after they separate. That continuing relationship is not the general picture today. Many children whose parents divorce only see their father once or twice a year or less or not at all.

Rightly we concentrate our concerns and resources on the relatively small number of children whose parents carry their acrimonious disputes through the family courts.

I am however concerned about the effect of divorce upon all children of divorced parents, the short-term and also the long-term effect. For the children whose parents divorce or separate, it is a new life, major adjustments have to be made for new relationships and, in some cases, it can have an adverse effect on schooling, personal relations, ability to make a good partner or a good parent. Research has shown that some of those children may under-achieve and that many children whose parents remain together do better than children of those who part. We know too little about the long-term psychological effect upon some children after divorce. It is an area which would repay further study.

Some excellent procedural steps have been taken in the family courts to encourage parents who go to court to settle at the first directions hearing and where it is in place the success rate is high. We all must recognise that there will be a very small minority of cases which are incapable of settlement, probably because of the problems one or both parents may have which the separation and the court proceedings may bring to the surface.  But the majority of parents who litigate over their children can, with skilled help, resolve their differences amicably and for the benefit of their children and the saving of cost to the wider community.  There needs, however, to be easy access for the parents to mediation and counselling before as well as after the separation.  The up-front costs of provision of such services, freely available, would be more than repaid over the long term. I was pleased to see the suggestion by the Government of parenting classes and hope it would be properly funded

Domestic Violence.

There is a group of children whose needs were largely overlooked by the courts as well as by the public for many years, that is to say, children living in homes where one parent is the victim of domestic violence inflicted by the other parent. Until comparatively recently the abusive behaviour of one spouse or a partner towards the other was a problem to which most of us, police, lawyers even judges, preferred to shut our eyes. It was behind closed doors and it was ‘domestic’. The problem was exacerbated by the reluctance of victims of abuse to come to court to get protection by way of court orders.

We are now recognising that children in families where there has been a high degree of conflict are far more badly affected than was once thought even if they are not immediately involved in it. The adverse effect upon children of being witnesses to or in a household where violence or intimidation was inflicted upon one parent by the other has only recently been widely recognised although there has been considerable research on the subject over a number of years. Following a Children Act Sub-Committee Report written by Wall LJ, the Court of Appeal in 2002 considered a group of cases in the context of domestic violence[re L] The judgments referred in some detail to reports of two distinguished child psychiatrists on the harm done to children. Many children do not perform as well at school; they are adversely affected into adulthood and may find it difficult to make adult relationships and to become good parents.

There has been a considerable change of approach towards domestic violence much encouraged by legislation passed in the last 10 years, such as in Part IV of the otherwise ill-fated Divorce Reform Act and in the recent Domestic Violence Act. Perhaps the most dramatic change has been in the approach of the police and of the Crown Prosecution Service in the detection and prosecution of serious cases of domestic violence even where the victim has refused to co-operate.  The allegations of violence or intimidation by one spouse/partner towards another may be dealt with as criminal offences in the magistrates’ courts or the Crown Court. The same allegations may come before a family judge or magistrates in the county court or family proceedings court for the grant of non-molestation or other family orders. The victim and offender may and often do have to trek from court to court for the allegations to be heard in two separate jurisdictions. This position will, I assume, become more acute with the enforcement of breaches of family non-molestation orders in the criminal courts. It seems to me that this well-intentioned legislation will, in some cases, have the effect of one court imposing conditions with considerable knowledge of the case, and upon a breach, another court, without that knowledge, imposing penalties for non-compliance.

What is needed is a new approach to the way we deal with domestic violence. In New York State there are now a number of courts which deal with all aspects of domestic violence, both criminal and family, under the same roof, often by the same judge. In Croydon such a court is in its embryo state, or was when I retired. It is clearly a good idea to have one door through which parties to both sets of proceedings arising from the same domestic incidents can pass and be dealt with at one time. There are however obvious difficulties. The parties are not the same in each jurisdiction.  The standard of proof is different and, since family cases usually come on much quicker than criminal prosecutions, a district judge hearing the family dispute on the balance of probabilities would not be able to try the same facts later on the different standard of proof. But as long as there is a team of judges/ magistrates under the same court roof that problem should be manageable.  Another difficulty would be that the lawyers, Bar and solicitors, often do not practice in both jurisdictions and lack expertise in one field and many solicitors do not have the legal aid franchise in both jurisdictions. But these problems should be tackled and solutions found.   The recognition of the seriousness of domestic violence has been an enormous step forward and to have one court to deal with all its consequences would be another major step in the recognition and management of a serious cancer in society. It would also have valuable cost savings in the use of the judiciary, the court buildings, and in avoiding duplicate legal aid expenditure. It does however require to be Government led and judicially supported.

Just as a footnote I should add that we should not be complacent about our present approach to domestic violence. A lot of good people are doing quite a lot of good. But violence towards partners has not been eradicated nor is it sufficiently detected and particularly in some minority communities it may be much more difficult for the victims to speak out and get help. We need much more public awareness across all communities and the recognition of the damage which is being done to the children in these families.

Children in Care

Some parents are for various reasons unwilling or unable to care for their children or injure or abuse them and have to be taken into care. For a child to be taken into care may be to protect the child from the dangers found within the family but we should not be unaware of the needs of the 46,000 or so children who are in care. Among many other areas of real concern, I want briefly to highlight two points which are less often highlighted than other aspects of care.

• The unsettled position of many children in care
• The public’s approach to the status of social workers

We know from a considerable amount of research that in general children who remain in care for any length of time do not do as well as children in their own families. In a sense that is likely to be so because children will not be living in care unless some traumatic event or series of events has brought them there. So they are likely to be unsettled, vulnerable, demanding and more difficult to manage.  But the lack of educational attainments and the high rate of pregnancies among children in care should disturb us all.

 

One group of children gives me particular cause for concern because they may individually and collectively be forgotten, those who are the subject of care orders and have not yet been placed either for adoption or other long term arrangement. Some children are left in limbo, without final plans for their future, not just for months but for years. Some have multiple moves. I heard of one child who had 40 moves before he was eventually placed. It is not surprising that such children present ‘problems’. This may be said to be a form of institutionalised abuse.

In the NSPCC survey a number of children referred to the need for permanency. One child said:

“I hated being moved about not knowing where I was going next and who these people were, so sometimes it was quite scary and upsetting as I could never settle down.”

Another said:

“I would like my Forever Family straight away instead of lots of short term family”.

Although I am well aware of the difficulties in placing some of these children, they are being deprived of their right and their need to grow up in a stable and secure environment. We are storing up trouble for ourselves and our children in the failure to settle these children who are in care.

I have for many years been concerned about the attitude of the public and of the professionals, even of the Government and certainly of the Media, towards social workers. Nurses frequently are praised by the Prime Minister and other ministers and the praise is reported.  I am not sure that the Prime Minister has ever praised social workers. The Secretary of State has but it is unlikely to be reported in the Press. Social workers are damned if they do or damned if they don’t. There have been over 70 inquires in the last 50 years in most if not all of which social workers have been criticised for removing children or failing to remove children believed to be at risk.

I am not suggesting that the criticism was not justified but I believe that, nonetheless, we owe an enormous debt of gratitude to social workers whose contribution to child care and child protection is irreplaceable. Social workers provide the safety net by way of protection of a substantial number of children who have been abused or are at risk of abuse. Without them the only protection for children would be the police. But social workers do not have the support or recognition from the public which would encourage others to want to become social workers. There is something like a quarter of job vacancies round the country in social worker posts and in Inner London it is dire. It is not surprising that there is criticism of children drifting once in care or a failure to spot problem families. Social workers are overwhelmed by the burden of their existing case loads and are overworked, unpaid and under-valued. They do just as an important job as nurses. They are protecting our children and we should be endlessly grateful to them. If they were properly recognised and valued, the additional contribution the revitalised Social Services departments round the country could provide would, in my view, make a marked difference to the protection and support for vulnerable children.

Children who offend

There appear to be two particular strands prevalent in our society which are, I would suggest, unhelpful to a realistic perception of children. On the whole we seem to prefer animals to children and that comment can be substantiated by the relative generosity towards animal and children charities. Secondly, if the newspapers are a reliable guideline, we seem to treat children as angels or evil demons. We idolise them or demonise them if they offend. I would suggest that we have a punitive approach towards children who commit offences, however young they may be. This punitive approach was starkly illustrated in the two cases of Mary Bell who, aged 10, killed two small children and Thompson and Venables who, also both aged 10, killed Jamie Bulger. In both cases the tone of the Press and the tone of those who responded to the Press was that such children were the embodiment of evil and should never be released from imprisonment for life.  In the absence of lifetime injunctions protecting anonymity, I have no doubt whatever that, if either Thompson or Venables were to be identified and located, he would be seriously injured or probably killed for the murder of Jamie Bulger. It was an appalling act but the period of retribution, I would suggest, is now past. The approach of this country is vastly different from parts of Scandinavia, for example Norway where such children would more easily be reintegrated into the community.

I do not believe that there are many, if any, children who are intrinsically evil – although there may be some who suffer from severe mental or behavioural disorders or have other problems so that they may be unmanageable other than by draconian measures.  We should, nonetheless, be very concerned that we have the highest numbers of young people under 18 in Western Europe in Young Offender Institutions, about 2800 was the last figure I saw. We should also be concerned that over a million children truant from school and about 9000 are permanently excluded from school. I heard a story from the deputy headmistress of a Scottish primary school about a single mother with 3 children under 11 who did not get her children to school. The eldest suffered from ADHD and could not sleep at night. She could not get him up in the morning so could not get the two younger children to school although they wanted to be there. The school referred the problem to social workers but nothing has happened and two young children are missing out on a crucial part of their schooling. No doubt the social workers had too many other and more pressing problems to try to cope with. But we need to ask how are such children going to manage when they become teenagers or grow up and how many may drift into crime?

I have nothing but sympathy for the residents of housing estates who are harassed, intimidated and terrified by gangs of children, sometimes young children, and see ASBOs as having an useful function, if used in moderation and with discretion. I was however glad to see that the CCA has directed that a young person under 18 should not be the subject of an ASBO unless a member of the Youth Court is on the bench. Breach of an ASBO is a criminal offence.I totally support cracking down hard on serious crime and on vandalism and other antisocial behaviour. But children who offend may also be children who are in need of help, particularly the younger children and I have in mind say 10-12. A considerable percentage of children who come before the Youth Court have major problems at home and many should be and are not in the sights of the local authority social workers under the requirements of the Children Act. There is a link between children who are living in unsatisfactory circumstances and are also offending. Children in need of protection often become children in trouble with the law. Whilst we consider how to contain them for the sake of the public, we also need to be asking why they are offending.  We must be careful not to write them off as beyond redemption.  A better understanding of offending by children and its causes is required if we are going to be able to take strong and effective steps to reduce re-offending.

A major problem in dealing with younger children accused of all but the most serious offences is the limited powers of the criminal court to deal effectively with them and endless appearances before the court is not a practical way of dealing with some children. Further it is necessary for the child to plead guilty or be found guilty in order to deal with him, such as through YOTS.  If not caught and dealt with effectively some children progress through the categories of crime and become lifetime offenders.

I should like to see a two pronged approach towards young child offenders which might not require them to be subject to findings of guilt in the Youth Court. One approach might be to set up a local committee with representatives of, for instance, the police, Crown Prosecution Service, Probation Service, social workers, preferably a district judge, to look at cases of the youngest offenders of 10-12 and first offenders up to 14. The committee would decide whether the offending required the child to be tried in the Youth Court or whether the background of the child disclosed family problems which were creating or substantially contributing to the offending and a welfare approach would be preferable. In some areas the family will be all too well known but even in those families, for the sake of the child, one must give up hope too soon.

The purpose of this approach would be to tackle the problems of young offenders at an earlier stage and in some cases avoid the Youth Court and go direct to the Family Proceedings Court and deal with the family rather than just the child.  An alternative approach might be to enable a Youth Court, in suitable cases before trying the child, to call for a section 37 report which a Family Proceedings Court can require from the local authority to investigate the family of the child and whether there should be intervention by the local authority by way of care proceedings. Either procedure would require the local authority under the present law to issue care proceedings which it is not obliged to do. But if social services round the country had more manpower and more facilities available they ought then to tackle these vulnerable and problematic children who need help and possibly to break the cycle of reoffending at an early stage.

Conclusion

I have raised with you in this lecture some concerns I have about children in the situations which I have outlined. I am very well aware that to do anything effective will cost money and that there are enormous other demands upon the public purse. From what I read in the newspapers, the Government is already thinking through some of these problems and the proposed Minister for Social Exclusion may tackle child related problems.

But I believe that, in a similar way to climate change, we must look at the sort of future we are building for our children and grandchildren who will take over from us in due course.   That realisation requires all of us to take an interest in what is happening to children today, many of whom will also be the parents of the future. The question has to be asked – what sort of parents will they be? What sort of future will they give their children? If we do not recognise that out there are children who need help and, in the absence of sufficient and appropriate help, may not live as good citizens, we shall be storing up problems for the next generation or generations which, I believe, we have a moral duty to try to sort ourselves.