I recently read Aristotle’s definition of justice: “giving people what they deserve” and my immediate thought was “but that’s not what they get in the family court”.
We expect our courts to dispense justice. And they used to, our country was renowned and respected for it. Until I read The Secret Barrister, I hadn’t realised just how far our system of criminal justice has deteriorated: an appalling lack of funding means that no-one (victims, those rightly or wrongly accused, witnesses, lawyers, judges) gets what they deserve.
The family justice system appears not to be quite so badly underfunded (apart from the removal of legal aid of course) but seems equally unable to give people what they deserve.
Victims of abuse go to court expecting – and deserving – their abuse to be recognised and measures taken to protect them and their children in the future. Whilst many do get the occupation and non-molestation orders they need, unfortunately, it’s a different story in children proceedings. Abuse is frequently not recognised and even when it is, it is often minimised, ignored or said to be ‘in the past’ and therefore not relevant. As a result, the protective parent is forced to put their child into potential or actual danger and can do little to comfort frightened children.
So what can you do? Forewarned is forearmed, and you can revise your expectations. Accept that you’re unlikely to get justice, or what your child deserves, and focus instead on getting the best possible outcome for your child. This means being 100% child focused.
So for instance, instead of saying “he pushed my face so hard into the wall that he split my lip, gave me a black eye and a massive headache” you could say “little Oscar (then aged 2) was sitting on the sofa when his father pushed me so hard against the wall that it split my lip and gave me a black eye. I tried to stifle my cry of pain so as not to frighten Oscar further but he had curled up into a little ball with his hands over his eyes. For weeks after he kept gently touching my face and he hid behind my legs every time his father came into the room. The awful headache continued for days which limited my ability to play the lively games I normally would with Oscar and he was very subdued and sad”.
In other words, no matter what has happened to you, you make it instead all about your child and how it has affected them. If you are traumatised by abuse, you’re not at your best for your child, so talk about that. If you are frightened, no matter how young they are, your child picks up on your fear and that threatens their security. Always say you’re worried about your child, not yourself, and explain how what their other parent wants isn’t in the child’s best interests. You won’t get the satisfaction you crave of everyone seeing how bad and wrong your ex is for what they’ve done to you, but you do stand more chance of being able to protect your child, so it’s important always to have your long-term goal at the forefront of your mind.
If false allegations are thrown at you, it’s also important to be totally child-focused. No-one likes malicious lies being told about them, but how do they affect your child? If you get side-tracked (as is the aim) into defending yourself, you’ve taken your eye off the child. So just say you deny it, ask for the evidence of his allegation and how it affected the child, and move on.
Covid-19 has meant we’ve moved away from court buildings. Do you get less justice in a remote hearing? Apparently judges are finding video hearings more tiring than ordinary hearings so their lists are only expected to be about half the usual length. And as “justice delayed is justice denied” it seems the answer is less justice, before we even consider the hearings themselves.
There have been reports of litigants shouting at judges from the comfort of their own homes, so it seems there’s less justice for judges too!
If you have, or may have, a remote hearing coming up and need to decide whether or not to oppose it and wait for a real hearing, I would highly recommend a read of this interesting account of a remote hearing.
It’s about a different sort of family hearing but the pros and cons of remote hearings are well set out – and seen very differently depending on whether you are a lawyer or a litigant. It was described by ‘Sarah’ as “a second-best option. It didn’t feel professional. It didn’t feel like justice. It felt like a stop gap to ensure a box was ticked – rather than a serious and engaged attempt to make decisions about my Dad.” And remember if you have a remote hearing, unlike ‘Sarah’, you will be home alone.