CAFCASS and the Judiciary -Unhealthy alliances-

1
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

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Childrens wishes and feelings

• The first question is how is this assessed?

3
Lillie and Reed v Newcastle City Council

• In Lillie and Reed v Newcastle City Council, a
  libel case heard in open Court at paragraph 405
  it is stated
• Young children are suggestible.
• Great care is required in analysing and assessing
  the weight to be given to statements from young
  children.
• 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).
• It is necessary to focus also on the wider
  circumstances of the childs life in the period
  leading up to any such "disclosure" that might
  explain or colour what the child is saying.
• It is vital to take into account delay between
  any event recounted and the statement itself.
• One should take into account carefully any bias
  or pre-conceived ideas in the mind of an
  interviewer.
• It is desirable to have in mind throughout any
  scope for contamination by statements from
  others, whether children or adults.
• 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
  anothers accuracy or merely reflect a common
  source.
• One should be wary of interpreting childish
  references to behaviour, or parts of the body,
  through the distorting gauze of adult learning or
  reading

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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 childs
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.
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ECtHR guidance

• In Sommerfeld v Germany 2003 it states
• 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
  childs relationship with the applicant as the
  parent seeking access to the child is an
  indispensable prerequisite for establishing a
  childs true wishes and thereby striking a fair
  balance between the interests at stake.
• 44. In the Courts 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

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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
  mothers 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".

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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 childs evidence
  which tend either to support or undermine its
  credibility.

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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.).

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Parenthood?

• Yet in many cases known of childrens 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 childrens wishes and
  feelings are totally ignored.

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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.

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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."

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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.

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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

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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

15
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 non-custodial 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

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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

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Change of residence?

• Change of child custody is appropriate if the
  custodial parents 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).

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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.

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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.

20
Judicial disbelief

• Judge Turner in reply to a parent who sought
  to question a court welfare officers 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.

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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.

22
Current UK situation

• Parental alienation Syndrome exists even if
  the Court denies it exists. Childrens 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.

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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.

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(No Transcript)
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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.

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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.
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WHAT is the State DOING?

• Please feel free to contact FLINT at 6, The
  Towers, Forton rd, Gosport. Hampshire. PO12 3HA
• Tel [phone]
• Email info_at_familieslink.co.uk

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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