Implementing the changes to the Constitution requires the input of more than just a judge, as they have neither the training or capacity to make such an important decision
The “Children’s rights” amendment to the Constitution may have consequences that most of us did not recognise when we voted for it. In particular, it may change how marital and similar separations are processed in future.
Currently, if spouses separate, either they agree terms or they go to court. If spouses who are parents go to court, the judge’s decision covers arrangements for how their children are to live, as well as adjudicating on the presenting dispute between the litigating parents.
But from now on the Constitution lays down that in any such proceeding “the best interests of the child shall be the paramount consideration”.
The issues that divide warring parents are no longer central. The question has been re-framed as what the “best interests” (dangerously imprecise words) of their children require.
That must surely change how a judge should approach “family law cases”. It seems also to raise a question about whether judges should continue to decide such “cases”.
A judge’s function is to administer justice. Deciding what will serve the “best interests of a child” is a different function, and will often have nothing to do with justice.
Under our new constitutional imperative, we can imagine a judge saying: “If these litigants had no children, I would order the husband should stay in the family home, and the wife should leave it and receive no financial support. But she is the primary carer for young children, and their interests require their father to quit the family home and support the family unit from which he will be largely, and unjustly, excluded.”
Very few people, asked “who is best qualified to devise optimal living arrangements for children of separated parents?” would answer “a judge”.
But there is a more fundamental problem. It is not going to be possible for anybody to make a wise decision on where “the best interests of a child” lie by listening to evidence and balancing different parental opinions, without looking further.
Such a decision requires not just information but understanding, emotional and intellectual, of how families live.
That understanding will then need to be brought to an attempt to understand the relationships and dynamics within the family the child was born into. Imagination may also be needed.
The court process is designed to establish facts and apply the law to them. It is not intended to develop real understanding, and it excludes imagination. The adversarial system in which it operates is certainly not designed and probably not capable of producing a wise view on what will be best for children of separating parents. Multi-disciplinary entity Making such a decision will be difficult, and even more so if there are two or more children whose interests must be considered.
What may be good for an adolescent son, for example, may not be for his much younger sister. And yet they may have a shared interest in not being separated. In the difficult work of plotting a good (let alone “the best”) course for children, a background in child psychology, in social work and perhaps in mediation may be useful.
A multi-disciplinary entity may have to be established. If so, its members will need to recognise that, unlike a court order, which demands obedience, what they propose will be useless without the active cooperation of conflicted parents. They will have to rely on persuasion, not command.
If a decision about the “best interests”, of children is made by people competent to make it, and if it is not respected, it may become the duty of a judge to enforce it – though that, also, will bring problems. But judges have neither training nor capacity to evolve a plan that will best serve children in such situations.
Wise judges will not be slow to realise that if the core question is “what will be best for these children?” a courtroom is not the place to ask it, and their legal expertise does not help them to answer it.
The amendment requires legislation, and legislation that genuinely gives effect to our revised Constitution must surely specify that in “family law cases” where non-adult childrens’ interests are central, the courts are replaced as the decision maker by a different authority, one competent to answer the question our Constitution now poses.
Who should exercise such authority, and the structure within which an identifying authority should operate have not been asked, much less answered. But the constitutional amendment seems to dictate that it must be addressed, in legislation. Michael Williams is a retired solicitor and the author of Serving the People?, a recent book about the need for legal and judicial reform