Two sides of the same story
Family law is one of the most contentious and heated areas the law has to deal with, particularly when there are children involved. There is not always a single issue that family lawyers and courts need to resolve. Instead, the courts are regularly faced with understanding and making decisions on all facets of a family’s life.
Throughout the family law process parties often throw accusations toward the other party, founded or otherwise. Both the courts and lawyers have to sift through these accusations and determine which ones have some basis of objective truth and are cause for concern, and those that are borne out of a dislike or hatred for an ex-partner.
A family consultant is a person who meets individually with parents and sometimes children. They aim to understand the nature of that family’s relationship and structure and provide recommendations to the Court as to what familial arrangements would work for families.
Take for example a family comprised of a mother, father and child. The parents decide their relationship is not working and decide to break up. They come before a family consultant who interviews the mother first. The mother tells the consultant an atrocious story of how the father abuses her physically and psychologically, presenting a significant risk to the child. The consultant then interviews the father whose story is completely different. He says that the mother’s story is categorically false and it is her alcoholism that poses a risk to the child. The consultant interviews the child but the child doesn’t say anything that confirms or denies any of the claims.
These are obviously two very divergent stories about the one family. Which story, if either, should the family consultant believe? If they choose to not believe one or both of the stories they could be placing the child in a position of significant risk.
Similar questions arise for the solicitors. Under the Solicitors Conduct Rules (r 17) a solicitor cannot act as the mere mouthpiece of a client and must exercise forensic judgment. A solicitor cannot, therefore, simply accept without question, the instructions of their client.
Despite the best intentions of solicitors and family consultants, there are occasions where, due to a lack of evidence or otherwise, the wrong judgment call is made and children are either exposed to harm or separated from parents unnecessarily.
This is an unfortunate reality for families where the parents cannot see what is in the best interests of their children.
The information posted on this blog represents our opinion and should not be taken as legal advice.