Published on February 4, 2023

Writing about whether Family Court decisions are always in the best interests of children requires a gargantuan effort to separate the objective from the subjective. There is a ‘best interests’ criteria Courts must follow and, if they do not do so, then the decisions are plainly wrong and can and must be appealed. That however ignores the vast human evidence that evaluates Family Court decisions and finds them wanting, unsatisfactory and sometimes unfathomable.

If parents want a decision that is truly in the best interests of THEIR children, then they must make that decision themselves.

From my perspective as a family solicitor, I cannot really recall any real shockers of decisions that stand out for their sheer ignorance or neglect of the best interests of the children involved. Perhaps that is because most of the children cases I deal with settle after hard work and compromise, or I usually end up with a Court decision that I consider to be in the children’s ‘best interests’ myself. This is not to imply that I have an unusually successful children law practice but rather, that I take the slightly unfashionable view that our antiquated and imperfect system, bolstered by the under resourced but battling CAFCASS officers, mostly has judges who are committed, intelligent and sensible human beings who are determined, despite the challenges of the system, to make sound decisions in the best interests of children. The premise is really that in most cases ‘a relationship’ between children and both parents is in those children’s best interests.

Delay, emergency applications and actual emergencies

Unfortunately, the system sets itself up for a fall. The Children Act makes it clear that delay is likely to prejudice the interests of any child. But when is a groaning Court system, relying on at least four busy legal professionals, the reports of overstretched CAFCASS and Social Services and, occasionally, at least one obstructive parent, going to be able to make speedy and lawful decisions in the best interests of children?

Some of the worst decisions I have seen have been made swiftly without notice to the other parent on an emergency basis. The judge has one-sided information from a parent who considers the stakes are so high that to present misleading or even fabricated evidence is a reasonable thing to do in the ‘best interests’ of his or her children. The damage done, even on a short-term basis, is often not at all in the best interests of the child as time progresses. Better to get things done right than done quickly.

And it is also a case of priorities. Objectively, the fact that your week’s summer holiday with your children in Spain may be at stake because the ex isn’t playing ball can’t really compete for Court time with an application to stop a child being abducted to Yemen. However, that is not going to be of much comfort to the parent who has to explain to some very disappointed children there is no holiday this year.

Multiple judges, multiple breaches, no changes

The need to secure a Court hearing in a not untimely fashion means that the same judge will not always be available. This is extremely demoralising for those parents whose time with their children is constantly frustrated by the other parent when a different judge treats each occasion as a ‘one off’ blip rather than a systematic denial of a relationship between parent and child.
Enforcement of existing child arrangements orders remains problematic. New legislation and various carrots and sticks arise to deal with failing to allow children to spend time with their other parent and judges try hard not to be so namby-pamby, but really hands are tied. When is it ever going to be in the best interests of children to reduce a mother’s (and in the vast majority of cases it is mothers) income with a fine or remove her from her children for a short sharp prison shock? But that is cold comfort for fathers proceeding on the principle that a relationship with both parents is in the best interests of a child.

Parents oppose children spending time with other parent for lots of reasons. Sometimes they have convinced themselves that no parent is better than one who does not measure up (in their eyes). Sometimes, personal feelings of rejection and hurt make it impossible to see the value of a relationship between the child and the other parent and it is too painful to have even limited contact at handover. Sometimes withholding a child is the most effective punishment for wrongs inflicted and, in any case, bad partner = bad parent. On occasion it boils down to suspicion, dislike of a new partner or simply control. For some it is the loneliness and fear of not having a precious child with them at all times. Whatever the reason, these feelings are formidable and some parents will go to extreme lengths to protect their child or, in reality, themselves.

False allegations

Accusations of abuse, physical or sexual, are always horribly difficult to confront. The Court has no choice but to suspend, curtail or supervise time with that parent (in the best interests of the child) until appropriate investigations have been made. As a result the child in question suffers months of messed about time with that parent in artificial environments, is questioned (however appropriately and skilfully) and, in some cases, subject to physical examination. In the child’s best interests? I think not. But the risk of harm cannot be ignored either. More parents than you would think consider that the end justifies the means. In some cases, parents’ bad behaviour seems to actually be rewarded by the Court who assess that to continue to enforce child arrangements will expose the children to emotional damage at the hands of the hostile primary carer and it is therefore in the best interests of the child to let the relationship with the other parent fall by the wayside.

When twice weekly arrangements become twice annually arrangements

Often the cases with the highest stakes are those in which one parent seeks to relocate to another country either with their new family or to return to their home country. These cases are enormously complex and hinge on a multitude of factors individual to each family but, in very simplistic terms, the effect on the primary carer (and new family) of being forced to stay in a desperate practical, emotional or financial situation is balanced against the effect on the child of a reduction in time with the other parent. When is reducing time with a much loved parent in the best interests of a child? But I suppose, neither is living with a carer who is in dire straits. The Courts are less ready to give permission to go than previously but still these difficult decisions are made, apparently in the best interests of the children concerned.

Missing out

Sometimes the Court is faced with two parents whose hostility is such that only the most detailed and rigid order will suffice. So if a best friend’s birthday party falls on dad’s weekend, too bad – the child misses out. If dad’s ski chalet is only available in mum’s week, the child does not go. Flexibility is almost always in the best interests of children but sometimes it is impossible and the Court must do its best to ensure relationships between parents and children survive animosity.

Making it all ‘equal’

In the days of shared care and ‘hands on’ dads the shared care order is king. Equal time is the new holy grail and some people really do make it work for themselves and, most importantly, for their children. I cannot help but sigh inwardly when I am presented with a schedule by parents who have divvied up their children’s days between them so it is all ‘equal’ and ‘fair’ and have not noticed that their little ones will sleep in a different bed every night of the week. Does this sound like it is in a child’s best interests? I am not convinced. The Court and CAFCASS continue to have concerns about this type of arrangement, particularly for school-age children but many parents believe ‘equal time’ is in the best interests of their children.

The imperfect parent

We continue to expect perfect decisions in less than ideal situations in an imperfect world. Not many of us would choose to have our children in the care of a cannabis user or with someone who has beaten his wife or who will have the children in the same bed in the morning with each new boyfriend. But if that is who the child’s parent is then that is what the Court has to work with. A relationship with both parents will be in the best interests of the child unless there are serious and pressing concerns about the harm this would cause to the child. Sometimes that leads to what are considered surprisingly lax decisions in the eyes of the other parent.

Beating the paradox

So when are Court decisions in the best interests of children? The answer is always and, sometimes, never. It is the paradox of the Children Act. The objective and the subjective. A Judge is not of your family although he or she may well do their level best to educate his or herself about what that means. A decision will be made in the best interests of the children as identified and assessed by an unknown third party. If parents want a decision that is truly in the best interests of THEIR children, then they must make that decision themselves, jointly with their co-parent. Anything else will undoubtedly be in the children’s best interests but, at the same time, probably not so.

If you are interested in reading more, there are a number of books explaining the law to people going through a divorce or separation. There is a range in our specialist shop.

Kathryn McTaggart contributed to ‘Separating With Children 101’, 3rd edition (Bath Publishing, 2023)

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Alternatives To Family Court

There are many alternatives to family court. For too many people, a bad situation gets worse if and when matters end up in a family court. There are at least twelve different options that are available to you; many of them work together, and all of them will save you time, money and a lot of stress. Courts are underfunded and overburdened and for many the stress of being part of the court process can have devastating effects on the family, particularly the children. As the senior judges and family law professionals keep telling us, "There are no winners in family court."

Timing On Divorce Or Separation

It's very difficult to get the timing right for getting on with the actual practical process of sorting out a separation. Sorting out the finances, the property, assets, debts and, most importantly, the children takes energy at a time when it is in short supply. If you can, take your time to find out what options are available to you in your situation and which would give you and your family the best outcomes for moving forward.

Getting Professional Advice

If you do need to engage some professional advice make sure they work exclusively in the area of family law and/or they belong to an accredited organisation; have a look at what they specialise in and, most importantly, always have a chat with them first on the phone to see if you like them. If you are engaging a family lawyer for the first time ask them to explain to you what your options are – today there are many ways to separate and it's important you pick the right route for you. You will find lots of support on this hub on the alternatives available and tips on how to choose the right professional for you.

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