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December 17, 2014 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This article demonstrates just how easy it is for mere allegations, not of domestic violence or anything close to it, can be used to keep a parent from his children (Daily Mail, 12/15/14). The article, quoting the appellate court judge, Mr. Justice Peter Jackson, refers to the case as “Kafkaesque.” But it’s not; it’s worse. The novel it refers to of course is Kafka’s unfinished masterpiece The Trial in which an apparently law-abiding bank clerk Josef K. is arrested for an offense that’s never specified. But at least Josef K. was told he was to be arrested. He never learns what the charge is against him, but he knows there is — or will be — one.

Mr. R., the protagonist of the latest outrage by family courts wasn’t so lucky. He was thrown out of his house and denied access to his children, his belongings and even the neighborhood in which he lived, without any notice. One day, he was told to leave and, when he was so abusive as to place a telephone call to his wife, he was arrested and jailed.

It seems that his wife, Ms. R., had gone to the family court, asked for and received a “non-molestation” order. That was done in the absence of any notice to her husband, the object of the order. Astonishingly, the same court that issued the order in a matter of hours, took five months to allow him a hearing on the matter. During all that time, Mr. R. was refused access to his six children and they to him.

Now, reason urges that Mr. R. must have done something pretty shocking to be so summarily tossed out of his home and denied contact with his children. Surely he’d committed some terrible act of violence that threatened the well-being of his family or perhaps even harmed them. But no.

The lawyers applied for a court order saying the wife was at risk of harm. They claimed Mr. R. had shoved her, thrown objects and had pushed her to the floor 17 years ago.

The application added that the wife had previously been expected to engage in distasteful sexual practices and that her husband had controlled the finances.

That’s right. Bare allegations of minor physical behavior that had supposedly occurred 17 years previously, plus sex alleged to be “distasteful,” plus his doing the family books, all of a sudden warrant a secret order removing him from his house and prohibiting him from having any contact with his children. Really.

It’s no wonder the “hearing” on the order was held without his knowledge. After all, if he’d known about it, he could have contested it.

The father, who can now see his children, told the court in a letter that he was “disillusioned with the justice system… which removes me from my home and family with a completely fabricated statement.”

Ah, so the “facts” that supposedly supported the order are, according to Mr. R., “completely fabricated.” We don’t know how he might have proved that had he been vouchsafed that sine qua non of due process of law, a hearing, but at least he’d have had the chance.

So, as we see so often, the family court abetted the taking of children from their father via the expedient of a false claim of domestic violence that it required five months to correct. Fortunately for the kids and Mr. R., Mr. Justice Jackson put a stop to all the nonsense and vacated the order, but of course the damage had been done.

It was five months before an appeal reached the High Court, which ruled the order should never have been made. It found 11 injustices by the courts that granted and maintained the order.

There you have it — baseless allegations, secret proceedings and a five-month process to quash the whole sordid thing, during which time the children didn’t get to have so much as a word with their father. It’s all well and good that the appellate court finally was able to do justice for Mr. R. and his children, but how many parents in Mr. R.’s predicament have the money to hire a barrister and pursue an appeal? If the U.K. is anything like this country, very few dads can do that. So, where Mr. R. was eventually able to prevail, my guess is that the vast majority of fathers can’t even try. Once out of the house, they have no recourse. Their kids aren’t out a father for five months; they’re likely out a father for good.

And my further guess is that both the lawyers for the mother and the courts know that very well. My guess is that this process is all-too common. My guess is that something like it happens every day more or less and that the perps get caught only rarely. When they do, there’s a bit of a dust-up in the press, but in a day or two, it all dies down and it’s back to business as usual.

Business as usual in British family courts tends to mean cutting fathers out of their children’s lives. Don’t believe me? About 90% of sole and primary custody goes to mothers and about 33% of children in the country have no contact with their fathers. And of course orders of access on behalf of fathers routinely go unenforced.

Now, it will come as no surprise if this couple goes ahead and divorces. She obviously doesn’t want him around and, given her recent behavior, he’d be a fool to stay. He now has a criminal record and she might just elect to gild the lily with future charges. If they do divorce, will the family court, in deciding custody, take this latest incident into consideration?

I doubt it, but it should. What the mother did was a classic example of an attempt to alienate the children and interfere with the father’s right to see them and they him. Justice Jackson calls Mr. R. a “man of good character,” so he certainly sounds like a fit father, while Ms. R. sounds like someone who’s perfectly willing to come between children and their father. That’s a form of child abuse and should be considered as such in deciding custody. But I doubt it will be. My guess is that this will be another off-the-shelf custody order in which Mom gets the kids and Dad gets to pay, irrespective of what they’ve done.

Needless to say, it’s past time that we got beyond the notion that unsupported allegations of bad behavior should be sufficient to take a parent from his/her children. Children need both parents. Period. Yes, if one is shown to be a danger to them or unfit to care for them, then sadly that person needs to be marginalized in their lives. But that should never, never be done without notice and an opportunity to be heard by the targeted parent. What happened to Mr. R. is a deprivation of his most basic rights to due process of law. And it abused his children in the process.

Family courts must honor those two basic concepts — due process of law and children’s well-being. It’s a simple concept, but one that, day in and day out, year after year, eludes them. Franz Kafka would smile.

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