'Why won't you listen?'
Individuals going through a traumatic and bitter family breakdown find it difficult to submit to legal decisions, observes Hazel Wright
Family relationship specialists, be they lawyers, mediators, or family therapists, are increasingly encouraged to listen to the ‘voice of the child’. We know that, particularly in court, it is also important to listen to the voices of the other members of the family, usually the parents, and in this internet age, to consider who else might be tuning in to the distress felt by all involved in hearings about children.
In the case of B (A Child)  EWCA Civ 1008, decided on 13 September 2016 in the Court of Appeal by Lady Justice King, the father appealed against a decision about his contact with his 11-year-old daughter that he disagreed with. As is increasingly the case these days where no legal aid is available, King LJ had a number of difficulties in her work on this case. The mother did not attend the court, and neither mother nor father was legally represented. The father had the assistance of a McKenzie friend.
Considering the voices
The child said to many specialists that she did not want to see her father. These professionals were tasked by the court to find out her true wishes (pursuant to the Children Act 1989). However, the father did not agree with the statements made by those specialists, and he wanted his daughter to be examined again, this time by a psychiatrist. King LJ refused to allow this. That an earlier judge had said what this girl wants and needs ‘is an end to the litigation and the opportunity to get on with what remains of her childhood’. This time the Court of Appeal listened to her, and the child’s voice was heard.
The voice of the father was also heard, however. We know this because for the first hearing, the father had submitted extensive covert video recordings which he had made over period of years. As is usually the case now, the judge agreed the recordings could be admitted as evidence, but in fact concluded that little weight should be attached to them.
The voice of the mother was influential in the judge’s reasoning, too. The mother had allowed the child to overhear conversations between herself and the grandmother which were critical of the father. She was criticised for this, but ultimately the judge decided the father also had responsibility for the child becoming alienated from him.
Ears and eyes of others
Finally, the court had to deal with the issue of publication of the judgment. The McKenzie friend submitted that not only would publication make matters worse between the parents, but there was a distinct danger the child might find the judgment on the internet. The father said that the judgment was not ‘a realistic reflection of the case’ and so should not be published. The Court of Appeal decided that this is a very important issue, not least because of the question over the use of covert recordings, the father must be allowed to win his appeal on this point, and another hearing must take place. He lost his appeal on all other points.
When we are going through traumatic family breakdown with all the bitterness that can bring, it is difficult for any of us to submit to legal decisions. Who can say whether early intervention outside the court, by specially trained therapists or mediators, might have helped this family. One of the real benefits of such interventions is that everybody feels listened to, as a central part of the process. Arbitration in children matters is now available and should be used more.
It is becoming increasingly hard to balance the rights of the family to privacy with the interests of the public in transparency, particularly in the family courts. The rapid expansion of social media, and its role in influencing behaviour of the public and of the press, is likely to feature in many court cases, not only in family law.
Hazel Wright is a partner and family mediator at Hunters