Although I've dealt with a large number of divorce cases over the years I resolutely refused to get involved in custody disputes. This was the result of years of bitter experience trying - and often failing - to resolve such disputes. I'm sorry to say that in all too many of the cases that crossed my path it was painfully clear that the prime motive for many parents was to get back at the other rather than trying to sort out the best solution for the child(ren).
It was frankly sickening to see the sheer selfishness and nastiness exhibited by both men and women towards each other, and the lack of consideration shown to the poor child(ren) caught up in their marital battles. It was (and no doubt still is) also the case that many of the lawyers involved were all too keen to stoke up the fires - at, of course, a substantial cost.
Sadly, nothing seems to have changed very much, as the hideous case of D (A child : parental alienation) [2018] EWFC B64 (19 October 2018) illustrates (damn, I'd included a link to the judgment, but I've just tested it and it's been removed).
The report gives a vivid illustration of just how horrendous these disputes can become, and how destructive such cases can be for all involved.
Except the lawyers - the judge's wise, but understandably rather despairing comments at the end should be a warning to anyone contemplating an exercise like this:
Neither of these parents is entitled to legal aid. Both are out of scope financially. The father told me that he has spent in excess of £200,000 on this litigation since 2008. The mother has spent over £120,000. That is an eye watering amount of money to spend in a battle to win the heart and mind of a child. These parents now need to invest their resources in trying to undo the immense harm that has been caused to this very likeable young man. They need to do that in partnership. D needs to see them working together for his best interests. It is clear that he has seen very little of that in the past.
If ever there was an expression of hope triumphing over experience this must be it.
The scary thing is that this type of dispute is not at all unusual. In fact the only reason this case came to my attention was the role of one of the expert witnesses, and a comment made by the judge (para 196):
196. In my judgment, Mr Hadden’s cross-examination of Mr Spooner was unexceptional. He put his client’s case and put it well. Although it would have been preferable had he not used the word ‘hobbyhorse’, the word is not a term of abuse. Mr Spooner made no complaint at the time. I was surprised, therefore, to receive an email from Mr Hadden before court on 5 th October (the final day of this hearing) in which he copied to me an email he had received from Mr Spooner the previous afternoon. The email had been sent at 16.33pm, within an hour of Mr Spooner completing his evidence. The content of Mr Spooner’s message comprised just one word: “Muppet!”. Mr Hadden has assumed that his use of the word ‘hobbyhorse’ may have been the prompt that led to Mr Spooner sending this email.
197. The email was gratuitously offensive. It was unprofessional. It should not have been sent.
But this was a little light relief in an otherwise dreadful litany of misery. The first application was made as long ago as April 2008, so the poor 13 year old boy that was being fought over had been the subject of litigation for more than 10 years - the vast majority of his childhood (if you can call it that).
I've often thought that the courts are completely the wrong place for matters like this to be resolved. They are hugely expensive (and as this is one of the few areas where legal aid is still available the cost to the taxpayer is horrendous) but the whole process is adversarial, enabling warring parties to use the system to score points off each other.
Unfortunately, however, there seems to be no effort or will to find a better system. Mediation is heavily promoted, but frequently fails simply because one or both parents refuse(s) to engage with it, actively preferring war war to jaw jaw.
So I don't know what the answer is, but litigation seems to be the worst possible `solution'. All suggestions gratefully received!