The Judiciary in Family Courts
(The need for making courageous decisions to achieve real justice)

Ludwig.F. Lowenstein Ph.D

Southern England Psychological Services



The role of the various parties involved in family courts is briefly described. The article considers especially the function of the expert witness providing information to judges when there is implacable hostility between the parties leading to difficult decisions having to be made by the Judiciary. It is especially important to consider what is in the best interest of children who are in the centre of continuing and unresolvable disharmony between parents. Both the short and long term effects of such disharmony are discussed via a real but fictionalised family court case. The author emphasizes that real and true justice and what is in the best interest of children are not separate issues, they need to be harmoniously interrelated.

The Judiciary in Family Courts

 (The need for making courageous decisions)

The author of this article has been involved in a number of high profile and difficult child custody disputes and contact disputes. In this the custodial parent is likely to  be the most successful. The result is that the children are encouraged to take sides and to feel guilty in having a close relationship with the now absent parent. This leads frequently to a protracted war between the parents often involving the Family Courts repeatedly often for years.
Following a brief description of the protagonists in family courts, a single serious case of implacable hostility will be discussed in some detail, and how one expert witness views the way the matter could be resolved in the best interest of children and possibly, ultimately the parents as well. The long term effects and aims are described and the important effects long term are emphasised.

1. The legal profession (Solicitors and Barristers)

Solicitors and Barristers in the Family Courts play a partisan role. They represent and work on behalf of their client(s). Their support of their client is total. Failure to do all that can be done to support their client could in the final analysis lead to disbarment, that is, no longer being allowed to practice. Such fidelity is not necessarily based on whether the Solicitor or Barrister actually believes in their client’s position, or that the client is justified in the validity of their case. They will therefore do their utmost to support their client to achieve the client’s desired result. This is the way of the “adversarial system”, whether one is in accord with it or not.

2. The expert witness in the family courts

Expert witnesses differ in their expertise and orientation, as well as attitudes. They are supposed, first and foremost, to be independent, judging matters as they find them without prejudice. Expert witnesses observe and study clients via interviews, psychological testing and evidence derived from written statements and what they witness in Court. They should not have preconceptions. They will however, have certain beliefs or principles by which they are influenced. This can never be eliminated despite the fact that they are essentially considered, and actually are, independent, in the conclusions they reach.

3. One expert’s decision

As an illustration I will cite the principle by which the author of this article works within the family court system as an expert witness with contact disputes, following an acrimonious divorce or separation. This will undoubtedly differ from the principles or views via which other expert witnesses work in the family courts. Despite these differences, the expert witness seeks to possess integrity as an independent person judging each case carefully and then drawing conclusions, but not making decisions since this is the role of the Judiciary. The current expert witness always works in the best way possible to consider what is in the best interest of children in the long term followed by what is best for parent.

Such principles or views must be made known to the various legal protagonists: Solicitors, Barristers, Judges etc. The legal profession must also be made aware of the experts websites such as that of the current expert and  which contain published works and a number of books and articles elaborating on his approach to contact disputes and custody disputes. This will make clear where that expert stands or the particular principles that he/she follows. For example the current experts principles are as follows:

A.        Every parent has the right and the responsibility to promote what is in the best interest of their children by playing a role in their lives until the children are sufficiently mature and capable of being independent.

B.        The exception to this principle is that parents who are abusive (sexually, physically, emotionally or via neglect) do not have the right to care for and guide their children.

C.        Such parents may never have custody or contact or they may, following successful treatment or education, be considered for variable contact after a period of supervised contact having been successfully undergone. This will be illustrated by the case to be presented later. Any decision made must be through the courts.

4. Judges in the family courts

Judges in family courts must make final decisions based on the total evidence presented. Such decision making is never easy. It becomes more complicated in difficult cases. This is especially the case when the advice provided by witnesses, and especially expert witnesses, are in variance. Conflicting views and evidence need to be carefully weighed by the Judiciary. This demands wisdom, skill and courage in equal measure. This will be shown by the illustration of a fictionalised case based on an  actual case, heard the British Family High Court.

It must be stated that Judges also have the principles upon which they make decisions plus the evidence produced. Such decisions are also based on the legal framework under which they operate. Judges must not be shy of making what could be considered unpopular and at time courageous decisions. Such decisions must be “just” and based on the evidence produced from all sides, and they always consider what is in the best interest of the children involved. The ‘best interest’ of the child may not always be the obvious choice displayed by the child, as parental alienation/persuasion can be acting here on the child. Judges need to be aware of this.

The fictionalised case which follows illustrates, the difficult decisions which may sometimes have to be made. What the decision is, in the illustrated case, has been intentionally left out. This provides the reader with the opportunity to decide whether he/she agrees or disagrees with the present expert witness and his conclusions or viewpoint.

5. A fictionalised case illustration

Mr X and Mrs Y had been at loggerheads for many years. Following an acrimonious relationship they parted and Mr X was eager for a divorce which Mrs Y opposed. Both parents were very close to the two children, one a boy aged 11 and the other a girl aged 9.

Over time the animosity between the parents grew rather than lessened. Mr X found himself less and less able to have positive meetings with his two children. It was clear that Mrs Y was extremely hostile to Mr X and the father wished to divorce her unconditionally. During the court procedure it was revealed that she had told the father that he would never again see the children if he went through with a divorce.

Over five years there were numerous claims and counter-claims regarding harassment by both parties, alleged domestic violence by both parties, and failing to abide by Court Orders in the case of the mother. Mother was the custodial parent. Father had very limited contact with the children and that contact was usually difficult and often unpleasant due to the children’s reaction to the father and the negative comments they had received about the father. Eventually, the father sought to gain a Residence Order. He accepted that his wife could have continued contact with the children providing that she did not alienated them against himself. Due to the difficulties that arose during contact with the children the father thought it best that he should have custody as he would not oppose the mother having contact on a regular basis. Mother constantly opposed the children having continued contact with the father except under supervised conditions.

The mother in fact stated that she only wished the father to have indirect contact but not direct contact. She claimed, without real evidence, that the father was likely to be a danger to the children. This father vehemently denied and he was supported by witnesses who observed his behaviour during contact with his children.
As a result of attending Court, the father was provided with regular contact with his children through the advice provided by the expert witness. He even had over night stay contact with the children. Due to the continued negative comments about the father by the mother the children initially would not eat at the father’s house and they were disinclined to be with the father for long. The father persevered and did a great deal to make the children feel comfortable and welcome in the home which he considered to be their home. Eventually the children benefited from being with the father and increasingly enjoyed his company. The lack of contact with the father for five years appeared to have been forgotten.

As the result of an accident while playing a game one day, the daughter received a small wound on her shoulder. When mother discovered this she immediately contacted her Solicitor, the GP and the Police. This led to contact with the father being curtailed until the matter was thoroughly investigated by the police interviewing the father as well as the children. The Social Services were automatically involved and they wished to ascertain the cause of the injury. The father maintained that what has happened was an accident and he had no part in causing the injury. The cause was eventually found to be due to one of the following: 1) father committing a hostile act towards his daughter; 2) father committing a non hostile act towards the daughter but the wound was incurred whilst playing a game which they all appeared to enjoy together.

The daughter eventually told the mother that the accident occurred for the latter reason. For some unknown reasons the police were never told that the minor injury incurred by the daughter due to the game they had played was not due to a hostile act. The children also did not give a true account of the circumstances leading to the injury! The police therefore felt uncertain as to why the wound occurred. The police naturally assumed that the injury was due to alternative 1 rather than alternative 2. It was hoped that the Judge was aware of the possible reasons why the children, when closely questioned, did not reveal to the police the cause of the minor injury. Mother immediately insisted that there should be no further contact between the children and the father. This was despite the fact that she was fully aware of the reason for the injury but she did not communicate this to others. The fact that the children failed to disclose this to the police rested on two hypotheses – 1) that the children without being aware of what they were doing failed to inform the police as to the true reason for the injury; 2) the children had possibly been told or encouraged by the mother not to mention that the cause of the injury was not due to the hostility of the father towards the children, but that it was due to a game they were playing. It was clear therefore that the children responded as they had previously done due to the influence of the mother. She had encouraged them, now and in the past, to lie and be deceitful and this led them to believe that this was acceptable behaviour. Such learning was unlikely to make them into honest adults in the future.

The expert witness had earlier on carried out a full psycho-diagnostic assessment of the parents and following this was asked to carry out mediation with the family. During the mediation, the consultant psychologist, mediator and expert witness found the father totally co-operative. Mother due to her implacable hostility toward the father, would not co-operate. She did everything she could to sabotage the mediators efforts to create harmony between the adults for the benefit of the children.

Following this good contact with the children despite mother’s continued alienation of the father, he decided on seeking residence of the children. Problems were especially serious during handover when father returned the children to the mother. There was no physical abuse, but rather verbal abuse, by both parties at the hand-over time. The expert witness deemed it vital that an independent person should have carried out the hand-over from parent to parent and observed and recorded any events that took place. Such an intermediary was unfortunately not available.

6. Making decisions of who should be the custodial parent in cases of mutual implacable hostility of one parent against the non custodial parent

The previous fictionalised illustration in which the psychologist and expert witness was intimately involved is typical of two parents at war. In the above case, the mother sought full control and totally to obliterate the other parent and to retain custody and control of the children. The father on the other hand, despite also having acrimonious feelings towards the mother and who had fought for years to have good contact with his children, only wished for good regular contact with the children. He did not wish to exclude the mother from playing her role as a participant parent in her children’s lives. He only wished to have residence (custody) when he discovered that the mother repeatedly failed to co-operate during mediation in permitting father to have good contact with his children, and to sincerely encourage the children to enjoy the company of the father. Father also felt, and correctly so, that mother was always seeking to find ways of preventing the children having contact, especially good contact, with the father. She wished to obliterate him as an active father. She sought to eradicate father from having contact with the children by fabricating charges against him. She continued to seek to alienate the father by using the children in a most deceitful way to denigrate the father. It was noted that the father did not do the same. He failed, however, from time to time to return the children to the mother on time as dictated by Court Orders much as mother had done in the past.

Since the psychologist and expert witness failed to convince the mother via the mediation procedure that it was vital to cease alienating the children against the father, a different course of action was recommended by the expert. This was to do as follows:

(i) Give the alienated parent (the father) custody of the children with mother eventually having contact, when her hostile alienation of the children had ceased.

(ii) Recommend that mother receive treatment in order to help her cease being an alienator. She was encouraged to speak well of the father to the children and no longer  make the children feel guilty about enjoying their father’s company. Needless to say father had been given the same instructions.

(iii) Once treatment to achieve this aim was complete and satisfactory, the next step was recommended. This was to observe supervised contact between the mother and the children for a number of sessions and to record the result of such supervised contact. Any signs of the mother influencing the children against the father, should lead to the curtailment of the meetings and the mother resuming treatment.

(iv Unsupervised contact should only be resumed when mother realised that such “brainwashing” as she had done in the past was wrong. Further contact with her children could then commence dependent on how her behaviour was in encouraging the children to have good contact with the father.

Needless to say, in a different case the custodial parent could be the father instead of the mother. Here the author and expert witness would draw the same conclusions. Fathers however, are still in the minority in having custody of children after divorce or separation. Once the sanctity of marriage or a relationship has ended, it is necessary to seek for the sanctity of good parenting whatever the sex of the parent. This should be the basis of providing what is in the best interest of children.