Transcript Document

CAFCASS and the Judiciary
-Unhealthy alliances-
"Blackstones" Constitutional law and human rights volume 8 on
Judicial functions states The principal functions of the judiciary may
be described, in part as follows:
• To provide for the orderly resolution of disputes, whether between private
individuals or bodies, or involving public bodies or the exercise of public or
governmental functions by public or private bodies;
• To uphold the principle of legality or the rule of law;
• To protect the individual against unlawful state activity;
Children’s wishes and feelings
The first question is how is this assessed?
Lillie and Reed v Newcastle City
Council
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In Lillie and Reed v Newcastle City Council, a libel case heard in open Court at paragraph 405 it is stated:
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Young children are suggestible.
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Great care is required in analysing and assessing the weight to be given to statements from young children.
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It is important to take into account the context of any such statement and how it was elicited (for example, whether any pressures,
rewards or leading questions were used).
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It is necessary to focus also on the wider circumstances of the child’s life in the period leading up to any such "disclosure" that
might explain or colour what the child is saying.
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It is vital to take into account delay between any event recounted and the statement itself.
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One should take into account carefully any bias or pre-conceived ideas in the mind of an interviewer.
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It is desirable to have in mind throughout any scope for contamination by statements from others, whether children or adults.
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Similarities between what one child is saying and the statements of another may be two-edged, in the sense that they might tend
to corroborate one another’s accuracy or merely reflect a common source.
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One should be wary of interpreting childish references to behaviour, or parts of the body, through the distorting gauze of adult
learning or reading
In paragraph 408; At the risk of over-simplification, it is possible to highlight some
of the propositions thrown up by the research that need to be addressed. ...It is
important, first, to recognise that, although such obvious factors as leading
questions, repetition, pressure, threats, rewards and negative stereotyping
can fundamentally undermine the evidential worth of a child’s account, it may
well be that a child will tailor his or her account in response to more subtle
and less easily detected influences.
In particular, there is (or may be) a tendency to say what the child perceives the
questioner would like to hear. Moreover, it may not be as easy to spot that a child
is adopting such an approach, as it would be to identify a leading question.
What had, I believe, not been generally appreciated prior to the recent research
was that children do not merely parrot what has been suggested to them but will
embellish or overlay a particular general theme with apparently convincing detail.
This can be very difficult to detect, even for those who are experienced in dealing
with children.
ECtHR guidance
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In Sommerfeld v Germany 2003 it states:
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42. ‘‘it must determine whether, having regard to the particular circumstances of the case and
notably the importance of the decisions to be taken, the applicant has been involved in the
decision-making process, seen as a whole, to a degree sufficient to provide him with the
requisite protection of his interests.
43. ..Correct and complete information on the child’s relationship with the applicant as the
parent seeking access to the child is an indispensable prerequisite for establishing a child’s
true wishes and thereby striking a fair balance between the interests at stake.
44. In the Court’s opinion, the German courts’ failure to order a psychological report on the
possibilities of establishing contacts between the child and the applicant reveals an
insufficient involvement of the applicant in the decision-making process. ’’
In the case of CASE OF GÖRGÜLÜ v. GERMANY (Application no. 74969/01) 26
February 2004 it is stated that ‘‘Although the essential object of Article 8 is to protect
the individual against arbitrary action by the public authorities, there may in addition
be positive obligations inherent in an effective “respect” for family life. Thus, where
the existence of a family tie has been established, the State must in principle act in a
manner calculated to enable that tie to be developed and take measures that will
enable parent and child to be reunited
And in the UK?
In Re N Ward L.J. expressed agreement with a passage
in the judgment of Wall J in Re and B ( Minors) (No.1)
(Investigation of Alleged Abuse) [1995] 3 F.C.R. 389,409:
"From a forensic view point para. 12.35 of the [Report of the
Inquiry into Child Abuse in Cleveland (1987) (Cm 412) the
unsuitability of having a parent present at an interview] remains
a correct statement of the proper practice, particularly in a case
where the only evidence of abuse up to the date of the first
interview was what the mother has said the child has said to her.
Quite apart from any pressure which the mother’s presence may
place on the child, the golden rule is that each interview is to be
approached with an open mind: such a rule is in my view
immediately broken if the mother is present at the interview".
Psychiatrists?
• In the words of Morritt L.J. In Re F.S.
(Minors) (Care Proceedings) [1996] 1
F.C.R. 667, 676-677:
• "The use of child psychiatrists is obviously
of the greatest assistance to the court in
many cases. In some instances that will
extend to pointing out features of the
child’s evidence which tend either to
support or undermine its credibility.
Criminal proceedings?
• In T. v U.K. (16 December 1999) and V. v U.K. (16
December 1999), cases concerning murder charges
against very young children, the Court noted that Article
6 , read as a whole guarantees the right of an accused to
participate effectively in the trial. The Court noted
– “The formality and ritual of the Crown Court must at times have
seemed incomprehensible and intimidating for a child of eleven
… the applicant states that he was unable to follow the trial or
take decisions in his own best interests.” (para. 86, T. v U.K.)
• Importantly the Court added “… the Court does not
consider that it was sufficient for the purpose of Article
6(1) that the applicant was represented by skilled and
experienced lawyers.” (para.88, T. v U.K.).
Parenthood?
Yet in many cases known of children’s wishes and feelings are
ignored even to the extent when a child has to run away or suffers
harm. There are also cases where when it goes against the wishes
of the Court the children’s wishes and feelings are totally ignored.
Parental Alienation Syndrome
(Excerpt taken from Kilgore v. Boyd, Circuit Court of the
13th Judicial Circuit of the State of Florida, Hillsborough
County, Family Law Division. Case no. 94-7573, Div. D)
THE COURT: ... If I do have to apply a Frye test he has
passed the Frye test. And I find that parental alienation
syndrome has passed the Frye test in my courtroom,
which is a Circuit Court Courtroom in the Family Law
division, based on the evidence and the argument before
me. The evidence and the argument before me, the
testimony and the CV of Dr. Gardner, together with an
excerpt of his writings. There was also proffered an
article from the Florida Bar Journal which, quite frankly, I
read when it came out and at the time I read it I placed
some credibility in it.
Dr. Gardner
• Richard A. Gardner, M.D. Parental Alienation
Syndrome (PAS)
– "This condition arises as a distinctive form of
psychological injury to children in high conflict
divorce. It occurs when the child becomes aligned
with one parent as a result of the unjustified and/or
exaggerated denigration of the other parent. This
leads to an impaired relationship with the alienated
(target) parent and an absolute loss of parenting as a
result of the hostility of the parent producing the
alienation. In most cases of high conflict divorce,
there are degrees of alienation. In severe cases, the
child's once love-bonded relationship with the
target/rejected parent is destroyed."
PAS criteria
PAS is characterised by a cluster of symptoms that
usually appear together in the child, especially in the
moderate and severe types. These include:
1. A campaign of denigration
2. Weak, absurd, or frivolous rationalizations for the deprecation
3. Lack of ambivalence
4. The independent-thinker phenomenon
5. Reflexive support of the alienating parent in the parental conflict
6. Absence of guilt over cruelty to and/or exploitation of the alienated
parent
7. The presence of borrowed scenarios
8. Spread of the animosity to the friends and/or extended family of the
alienated parent.
LEGAL CITATIONS
Coursey v. Superior (Coursey), 194 Cal.App.3d 147,239
Cal.Rptr. 365 (Cal.App. 3 Dist., Aug 18, 1987. The Court
finds that the mother, Loretta Coursey, has induced
such animosity of their daughter toward their father,
Eugene Coursey, that the child now suffers with
parental alienation syndrome, and refuses to visit
her father. The Court, therefore, fines the mother
$500 and sentences her to five (5) days in jail. The
order, however, is stayed as long a the mother
successfully completes scheduled visitations of
their daughter with the father. The Co urt also orders
Loretta Coursey to pay Eugene Coursey $1,000 for
attorney fees. (COURSEY V. COURSEY Sutter
County Superior Court (California) No. 33254 August
18,1987)1988
Poisoning children
Schultz v. Schultz, 522 So.2d 874, 13 Fla L. Weekly 387 (Fla. App. 3
Dist., Feb 09, 1988). Reference is made here to the parental
alienation syndrome and the inculcation of the children's
alienation by the mother. The Court threatened "the severest
penalties this Court can impose, including contempt,
imprisonment, loss of residential custody, or any combination
thereof if the mother did not comply with this Court's order to
cease and desist from her "slowly dripping poison into the
minds of the children" rather than to instill love and respect for
the father.On appeal the Florida Third District Appeals Court
ruled that the Judge had acted properly and that there were no
grounds for the mother's appeal. (SCHUTZ V. SCHUTZ, 467 So.
2nd 407 Fla. 4th DCA 1985)1989
Parental fitness
• Krebsbach v. Gallagher, Supreme Court, App. Div., 181
A.D.2d 363; 587 N.Y.S. 2d 346, (1992). “Interference
with the relationship between a child and a noncustodial parent by the custodial parent is an act so
inconsistent with the best interests of the child as to
per se raise a strong probability that the offending
party is unfit to act as a custodial parent” (Leistner v
Leistner, 137 A.D.2d 499, 524 N.Y.S.2d 243; see also,
Matter of Krebsbach v Gallagher, 181 A.D.2d 363,
366, 587 N.Y.S.2d 346) 1993 1994
Best interests
“Best interests of child lie in his being
nurtured and guided by both natural
parents. TWERSKY V. TWERSKY, (2 Dept
1984) 103 A.D. 2d 775, 477 N.Y.S. 2d 409
“Visitation is not only a joint right of a
parent and child, but it is also in the best
interests of child to have a meaningful
relationship with his or her father. LYNG V.
LYNG, (4 Dept 1985) 112 A.D. 2d 29, 490
N.Y.S. 2d 940
Change of residence?
“Change of child custody is appropriate
if the custodial parent’s conduct
deliberately frustrates, denies, or
interferes with the other parents
visitation rights.” VICTOR L. V.
DARLENE L. (1 Dept 1998) ___ A.D. 2d
___, 674 N.Y.S. 2d 371 (emphasis added).
MMPi 2 testing
FROM THE AMERICAN JOURNAL OF FORENSIC PSYCHOLOGY,
Volume 16, Number 4, 1998, p. 5-14 MMPI-2 VALIDITY SCALES AND
SUSPECTED PARENTAL ALIENATION SYNDROME
MMPI-2 validity scales of two groups of parents going through child
custody evaluations, parents who engage in parental alienation
syndrome (PAS) behaviors and parents who do not, were compared. It
was hypothesized that PAS parents would have significantly higher L
and K scales and a significantly lower F scale than parents who do not
engage in these behaviors.
The hypothesis was confirmed for K and F scales, indicating that PAS
parents are more likely to complete MMPI-2 questions in a defensive
manner, striving to appear as flawless as possible. It was concluded
that parents who engage in alienating behaviors are more likely than
other parents to use the psychological defenses of denial and
projection, which are associated with this validity scale pattern.
Implications of this finding regarding possible personality disorders in
PAS parents are discussed.
Judicial view of fathers?
Hon. Richard Hunter Former chief judge of the King's County
(Brooklyn) Family Court. He was a prominent member of the
New York State Commission on Child Support Judge Hunter on
fathers, he said:
"You have never seen a bigger pain in the ass than the father who
wants to get involved; he can be repulsive. He wants to meet the kid
after school at three o'clock, take the kid out to dinner during the week,
have the kid on his own birthday, talk to the kid on the phone every
evening, go to every open school night, take the kid away for a whole
weekend so they can be alone together. This type of father is
pathological."
Quoted in "The Fathers Also Rise," New York Magazine, November,
18, 1985.
Judicial disbelief
Judge Turner in reply to a parent who sought to
question a court welfare officer’s report: ‘That
confirms my suspicions. This is what members
of the public do when they disagree with the
recommendations. I believe that it is totally
wrong that members of the public can challenge
judges and court welfare officers. Officers should
not be subjected to it. There is a procedure
outside the Court about making a complaint
against the judge. Members of the public
should not have the right to make
complaints.’
Why worry?
Parental Alienation Syndrome or PAS which will
give rise to mental health and psychological
disorders and dysfunction will result in more
false allegations being made. PAS is recognised
in Germany, Holland, Israel, Spain, Canada
having passed the Mohan Test and in the United
States having passed two Frye tests. Yet in the
UK the main case law on it is re L,V,M and H,
stating that PAS is a misnomer after a report by
Sturge and Glaser two feminist psychiatrists on
the issue of Domestic violence not on the
psychology behind PAS and report by LJ Wall.
Current UK situation
Parental alienation Syndrome exists even if the
Court denies it exists. Children’s welfare is being
destroyed. Already in the UK we have the
greatest amount of teenage pregnancies which
is directly related to fatherlessness, the worst
ever mental health of teenagers, increasing
teenage delinquency, rape, drug and alcohol
abuse, self harming and poor behaviour in our
schools. This is backed up by the BMA report in
2004 and the UNICEF report 2007.
After the problem – what answer?
Raja V Austin Gray (a firm), [2002] EWHC 1607
(QB) 31st July 2002 and in particular paragraph
12 where it states; It seems to me that it is
reasonable and in the public interest to expect
professionals, and indeed anyone else offering
particular skills for reward, to exercise them with
reasonable competence.
This includes the Judiciary with their ample
pensions, lawyers, barristers, Guardians,
Social workers, CAFCASS officers.
Proper training
In the CASE OF T.P. AND K.M. v. THE UNITED
KINGDOM (Application no. 28945/95)
The local authority, which is charged with the duty of
protecting the child and is a party in the court proceedings,
may reasonably not be regarded by a parent as being able
to approach the issue with objectivity. The question whether
crucial material should be disclosed should therefore not be
decided by the local authority, or the health authority responsible
for the medical professional who conducted the interview.
The same principle applies to CAFCASS officers and
others.
The Report of the Inquiry into Child Abuse in Cleveland (1987). At para. 12.34, it is to
be noted that unanimity was recorded among the experts who had given evidence to
the inquiry in relation to a number of matters. Those were endorsed by the inquiry team:
All interviews should be undertaken only by those with some training, experience
and aptitude for talking with children.
The need to approach each interview with an open mind.
The style of the interview should be open-ended questions to support and
encourage the child in free recall.
The interview should go at the pace of the child and not of the adult.
The setting for the interview must be suitable and sympathetic.
There must be careful recording of the interview and what the child says, whether
or not there is a video recording.
It must be recognised that the use of facilitative techniques may create difficulties in
subsequent court proceedings.
The great importance of adequate training for all those engaged in this work.
WHAT is the State DOING?
• Please feel free to contact FLINT at 6, The
Towers, Forton rd, Gosport. Hampshire.
PO12 3HA
• Tel – 07719020208
• Email; [email protected]
We also seek witnesses to testify
with evidenced cases
Please contact Shaun on the above
contact details and be willing to permit
sight of the documents in order to ensure
we do not have any cranks/ weak cases
involved as the campaign has begun for
the restoration of the family and
accountability.
…….and God help those that deceive us…