PROFESSIONAL and life experience are important for a judge to be able to tackle complicated cases. That is why in the UK you can hardly become a judge before your 50th birthday, said Lord Justice Matthew Thorpe, a now retired noted English judge specialising in family law. One year ago he decided on the Boor case, which sparked considerable publicity and controversy in Slovakia. Thorpe discussed this case as well as a range of adoption-related issues in an interview with The Slovak Spectator.
The Slovak Spectator (TSS): The best interest of the child is always the primary goal in family law. How do you define what that is?
MT: In the end the responsibility rests with the trial judge. And in many cases he will have the advantage of expert evidence. There will probably be a social services inquiry report, which will particularly canvas the wishes and feelings of the children and which ultimately may make a recommendation to the judge as to the welfare outcome. If there is no such [report], and the judge is just deciding for himself or herself on the evidence, the judge’s strength is the experience and expertise that he or she has acquired. Because in our system judges who decide family cases are specialists. And they will have practiced as either solicitor or barrister for years before appointment, probably in family law. So you develop experience and from the experience comes expertise. And you may bring to your job your own experience as a parent. In our system, you’re unlikely to become a judge much before the age of 50, by which time you’ve probably got children at university. So you’ve got something from your own life experience. In Europe judges are very often sitting in family cases at the age of 28 or even less. They may not even have married in modern times. Certainly if I was the litigant, I’d rather be judged by a judge who had had personal experience of family life.
TSS: Divorced fathers are now actively fighting for their rights to be with their children. What is your opinion about this fathers’ lobby?
MT: Militant fathers are probably a response to militant women. And there is this sort of gender warfare which has been going on for a very long time. I think that the fathers’ movement has been provoked by a long period in which the judicial assumption was that children are best off with their mothers. The father can take kids to football, but daily care should be with mothers. And that has provoked the fathers’ movement. It is essentially not an issue for judges, because it is a social issue and an issue for legislature. We have seen Australia introduce a provision which is something close to equality of parenting time. The fathers’ movement in England has always been really determined to achieve the same with us. They have never succeeded in persuading successive governments to introduce that reform because of the general view that equality of parenting time is too crude and the welfare of the child has got to trump the fathers’ claim to equality of time. I have a lot of respect for the fathers’ movement, which has been effective [and] has been responsibly run, but in the end every case is different, every case has to be decided on its facts. There are good fathers and there are bad fathers, there are good mothers and there are bad mothers. And you simply have to do the best for the children, with whatever mix you have.
TSS: In Slovakia, inter-country adoptions and alleged forced adoptions made headlines in the past year after the occurrence of several controversial cases. Some people consider them a violation of human rights, or a form of forced assimilation. What is your view of this problem?
MT: My experience is largely in domestic adoption. In my professional life I’ve seen quite a lot of reform on domestic adoption designed to make adoption easier. That has been the effect of the latest act. So it’s possible to dispense with parental consent on welfare grounds, which never used to be. I do have considerable misgiving about the political push to increase the number of children who are adopted. You will have a given pool of children who have to be removed from their birth families because the families failed. Once you identify the pool, the question is, what is the best future that you can design for them. And the government policy in England has been that those children deserve new families. Long-term fostering is not an answer, because when they turn 18 they leave the foster family and they have no family to go to. So the policy is to increase the number of the identified pool who will be adopted. That’s why the law was changed to make it easier to adopt. What would be the long-term consequences would require a very sophisticated and very expensive piece of research, because it would have to be a study covering decades. Adoption as a remedy for promoting child welfare is very far from being universally recognised. There’s no concept of adoption in the Islamic world. I suspect that we are freer in England in our adoption policy than maybe many other EU member states. I was talking to a judge in Austria who said they would never think that it was necessarily the best solution to implant a child in a new family, because in the end what matters is the biological link. Your parents may fail, but what about the extended family. And even if the state takes the children away during minority, the state is powerless when the child turns 18. If the child wants to go back to the ‘dangerous’ parents, the child will. And the research evidence tells us that in a surprisingly large number of cases that is exactly what happens.
TSS: A specific case of adoption of Slovak children in England was the Boor case, which you decided on in front of the Court of Appeal. This stirred much controversy in Slovakia.
MT: You know all about the case from the point of view of the Slovak media, I know about the case as a result only of a very limited involvement of the Court of Appeal in November and December 2012, but I know what the issues were and what the court decided.
TSS: The case led to the Slovak media questioning social services in England.
MT: That seems to me to reveal a fundamental lack of understanding of the case. Because the care order, which was the order removing two children from their parents, was not disputed. It was not a subject of the appeal. It was a given within the appeal that the children could not live with their parents. So the only issue is once they were rightly identified as being within that pool of children who have to be removed, the only issue was what was the best management for their future. Was it to place them in Slovakia with the available grandmother, or was it to give them a new family, either a foster family or an adoptive family. That was the only issue. Of course the Slovak media could criticise the English local authority for having successfully persuaded the judge that a new family was better than the grandmother. But the only issue in the Court of Appeal was whether the trial judge was right to be persuaded by the local authority that it was the better choice. So I don’t think that the Slovak media have any ground for criticising the local authority, because the local authority’s conviction that separation from the grandmother, the placement in a new family, was sincere. They genuinely believed that was for the better and it was therefore their duty to advance that to the court with all the strength they could master. I can’t see how anybody could criticise the local authority except that they did shift at a very late stage from supporting the grandmother to rejecting her. And the only criticism that you could have is that they did not have much cause to make such a radical shift. If they thought that she was the better option all the way through, they had to have a pretty good reason to shift radically to oppose her. And it wasn’t possible to find in the history, anything that had happened for which you could say ‘of course they abandoned her’. There didn’t seem to be sufficient substance.
TSS: So that was why the court ruled to let the children live with their grandmother?
MT: Yes. And also there was the sense that the guardian ad litem, who is the special representative of children in children’s cases, also shifted from having been supportive of the grandmother. When the local authorities withdrew their support, the guardian started to be insecure, saying the grandmother must undergo some sort of therapy. And we expressed the view that that was a bit unrealistic. You have to make suggestions that are sensible and practical. And for a grandmother, with a home in Slovakia and job in Slovakia, to say that she should remain far away from her home and work for a rather long period of time to undergo therapy… It seemed a bit far-fetched.
TSS: There have been reports about social services being stricter and removing children from families faster, especially after the Baby Peter Connelly case in 2007.
MT: I think that is a very unfair assertion and I think it misunderstands our child protection system completely. The protection system is not just protection of children, but protection of families. And the act of parliament from 1989 is very clear in saying that the court cannot make any order interfering in family life unless the local authority has proved either that the child has suffered harm in the past or is at significant risk of suffering harm in the future. That’s quite a threshold as the judges have interpreted it and applied it. In many cases it’s hotly disputed by the family. You have not crossed the threshold, you have not proved harm, you have not proved the risk of harm as of the day you issued your proceedings. And sometimes the judges would say the threshold hasn’t been crossed, end of case. But in many cases it’s transparently obvious that the threshold has been crossed - the mothers are drug addicts, the father’s in prison, the children are not going to school very often. There are innumerable instances in which the threshold has obviously been crossed. And then the only issue in the case is what should happen in the future in the search for child welfare.
TSS: You came to Slovakia to discuss parental child abductions. What leads parents to take such a dramatic action?
MT: We’re talking about the Hague 1980 abduction convention to which all member states of the EU are party. If you ask why do [parental] abductions occur, you have to go back to the creation of the instrument, when it was thought that the typical abductor would be the father. The mother would have residence, the father would be having weekly contact, and during the course of his weekend he would take the children to the airport, fly off to another country with the primary intention of seizing the daily care. He wasn’t going to get daily care by court, the court had already given it to the mother. The only way he could get daily care would be by theft. That was what the convention was designed to prevent. But we now know that statistically the majority of abductors are mothers. There was a time socially when people didn’t divorce, didn’t separate. If you were an unhappy wife you’d put up with it thinking you’d have your reward in heaven. But nowadays people, if they don’t like it, they up and go. So very often the mother, having decided that she’s had enough, thinks she wants to go home. She’s got parents in Slovakia, so she’ll come back here. And then there will be the application for a swift return and the Slovak court will have to decide whether the mother has made good [on] any of the exceptions which may lead to the denial of the return order. It may be that there is a history of domestic violence. It may be that the husband is unkind and uncaring without being violent. It may be that the mother has lost the sense of romance in the marriage and she has started an internet relationship with a boyfriend in another country and she thinks she’ll be happier there. So there are all sorts of factors. But I think the factor that drives an abduction has got to be quite strong. It’s not something you do likely. You must have some sense of guilt having done it. Some sense that you have wronged the father, or wronged the children by denying them the father. So I think it’s a very complex situation emotionally. It’s very hard for the left behind parent, suddenly to discover you’re not gonna see your children next week, and then heaven knows when you will. But it’s a very hard thing for the abductor too, it requires a lot of strength. Make the plan, carry it out.
TSS: So it is not a straightforward situation, for the judge to decide upon - you can’t easily identify the culprit and the victim.
MT: It’s important to understand that in this area the judge cannot bring into account morality. Whether the mother has behaved well or badly is not relevant. The only question is, has the applicant established the basic requirement, namely that the children have been removed at the time when he was exercising rights of custody, to another jurisdiction, which is also a convention country, without his consent or acquiescence? And if he can establish that, which is pretty easy in most cases, then the scene shifts to the abductor. Most usually she will say she had to do it because the children were at grave risk of physical or psychological harm. And then the judge has to decide on the evidence, whether one of the exceptions of the convention has been proved.
TSS: Some people whose children have been abducted by one of the parents have asked the state for help. Is that the right thing to do?
MT: The way we manage it is quite simple. If the state to which the children have been removed is party to the convention, then there is the convention remedy and there is scarcely a role for government. But if the state is not party to the 1980 convention, then it is essentially a responsibility for government. Because if you haven’t got a legal remedy under the convention, all that you have left is diplomacy, and diplomacy is the trade of the Foreign Office. In every British embassy or high commission there is a counsellor who has to wrestle with these cases. If you take quite a classic case, the abduction of children of an Egyptian father from an English mother and habitual residence in England, in Egypt. The mother has lost her children, she has no hope of getting a contact order out of the Egyptian court. The only hope is the consul. And the consul in Cairo will go and see the Foreign Minister in Cairo. And they have in Cairo what they call the commission of good offices which tries to mediate in these situations, they try to tell the father that he and his children are Egyptian citizens but he must let the mother see them, and they will try to work out some middle ground. So the responsibility of government in relation to the abducted children is more or less confined to those cases in which the country to which the children have been abducted is not a convention country. And the number of those countries is shrinking all the time, now there are about 80 countries that are operating the convention.
Who is Matthew Thorpe
Matthew Thorpe was appointed judge of the Court of Appeal for England and Wales, the second highest court in the country, in 1995. In his career he specialised in family law and decided on several cases that have influenced this branch of law in England as well as internationally. In 2012 he dealt with the appeal in the Boor case, which involved two Slovak boys who were taken away from their biological family in England. In 2013 Thorpe retired.
25. Nov 2013 at 0:00 | Michaela Terenzani