A serious topic
Are family courts biased? First of all, apologies if you feel that the title of this post is somewhat flippant. I do understand that this is a serious topic and that many people have very strong feelings upon it. In both directions. But I still feel that the title is appropriate, as it reflects the ambiguous nature of the debate as to whether or not the family courts show bias towards mothers or fathers.
I read a
great deal about family law, and the opinions of those who use the family
courts, in various capacities. And I can tell you that for every opinion in
favour of one side of the debate there is another opinion in favour of the
other side.
Of course,
it would be easy to conclude from that that the ‘truth’ lies in the middle:
that the family courts are not actually biased one way or another. But that
would involve a dereliction of the duty we surely have to properly investigate
what is, as I say, a serious topic, which can have extremely serious consequences.
Okay, all of
that was a slightly long-winded way of saying that I thought I would have a
closer look at the topic I highlighted in my weekly review post
here last Friday:
the recent discussion in the letters section of The Guardian newspaper regarding the suggestion that “the
disproportionately male judiciary is more likely to rule against abused women
and children”.
Damning
The suggestion was contained in an opinion piece by deputy opinion writer Sonia Sodha, which appeared in the paper on the 5th of March. As I explained on Friday, one of her particular concerns relates to what she called “the junk science of “parental alienation syndrome”, which she suggests is being too readily accepted by courts as a fact, when raised by fathers in response to abuse allegations by mothers. She says:
“There is evidence of an increasing willingness in recent case law to transfer the residency of children from “alienating” mothers to their fathers. As a result, women have to think carefully about bringing abuse allegations to court – even where they may be evidence – in case they get accused of making false claims and lose custody as a result.”
And she
concludes with the damning:
“…putting these decisions in the hands of an unaccountable and disproportionately male judiciary, untrained in domestic abuse, some of whom seem to have no problem slipping their social biases into the courtroom, is bound to cause problems. Given the capacity for errors in human judgment, of course, there may be fathers who have heartbreakingly had access to their children unjustly restricted. But the balance of evidence points to a system that is biased against abused women and children, not innocent, falsely accused men.”
This led to retired
circuit judge His Honour Glenn Brasse leaping to the defence of the judiciary,
in the letters column of the 9th of March. He said:
“Sodha … suggests that the system is weighted against women. The reverse is true. Legal aid is available to any woman who has evidence of physical or sexual abuse. The anomaly is that while the accuser may have legal aid representation, the accused, usually a man, does not.”
And he went
on:
“Sodha refers to a “disproportionately male” judiciary, but that was certainly not the case in the central family court, where I sat. The “parental alienation syndrome” to which she refers may or may not exist as a phenomenon, but it is, sadly, true that some mothers turn their children unfairly against their fathers, just as often as is the converse.”
But there were other voices who agreed with Ms Sodha. On the 11th of March, for example, a letter from Jane Fortin, Emeritus professor of law at the University of Sussex, was published. She says that judicial assumptions that children reluctant to have contact have been brainwashed by the non-resident parent seem to be on the rise. However, she warns that increased judicial willingness to contemplate transferring children’s residence from “alienating mothers” to their fathers’ risks overlooking abuse by fathers and transferring the child into the care of the abuser himself. She concludes:
“A child at the receiving end of such an order might justifiably feel completely betrayed by the court system.”
Indeed they
might.
A thin tightrope
As can be
seen, it’s a desperately thin tightrope that the courts must negotiate, and
getting it right in every case is obviously an impossibility. Maybe there is
bias, maybe there isn’t. But the obvious problem with suggesting that there is
is that it runs the risk of pushing judges over the other side of that rope. Just
as we must remove any bias from the minds of judges, we must also allow them
the freedom to deal with cases without any preconceptions.
You can find the original Guardian article here, and the letters to which I have referred here and here.
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