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Wednesday, 13 December, 2000, 00:00 GMT
Families at War: Transcript
This is the full transcript of Frontline Scotland's Families at War programme broadcast on 12 December and presented by Ewan McIlwraith.
EWAN McILWRAITH: Divorce and separation can devastate families, and children are caught in the middle.
And if it comes to the court battle, they can be used as weapons by warring parents, their wishes lost amid the bitterness and recrimination.
But children are fighting back. They are getting their own solicitors, and Scotland is leading the way as young children take their parents to court to dictate where they live, and with whom.
Like 10-year-old Yasmin, who successfully asked a court to remove her father from her life.
Others are suing parents to fund their education.
TIM SHREAD: It's only fair that my mother should pay for my upkeeping, instead of having...instead of just dumping me...leaving me with my father, and letting him suffer all the...all the consequences, and well... I think it's her turn to pay her share.
EWAN: Tonight on Frontline. Are children asserting their rights, or are they being manipulated?
Schoolgirl Nicole Lavelle will soon learn whether her bid to sue her father for boarding school fees has been successful. She told Stirling Sheriff Court that a feud between her divorced parents forced her to sue her father for £6,500 per year.
CALLUM LAVELLE: I'm very disappointed to...a father meeting a child across a courtroom is not the way that families' values should be upheld. But as I stated before, I've always upheld my parental duties.
NICOLE LAVELLE: I'm just sad that it had to come to this really.
EWAN: In America, children's rights have made further strides. Legal history was made eight years ago by a 12-year-old boy when he effectively divorced his mother in a Florida court.
So could this be the future here too as children increasingly turn to the courts ?
It all seems a long way away from the picture of idyllic family life of the 1950s when divorce was rare, and children were seen but not heard.
But now Britain's soaring rate of family break-up is fuelling legal disputes between parents involving their children.
At the same time, children have never been more vocal in demanding their say.
In 1996 they won the right to be heard in court cases affecting them. Scottish law now assumes them mature enough to get their own solicitor at 12. And much younger children can also bring cases if they pass a simple test to persuade lawyers that they understand what a solicitor is.
But it is a leap too far for many.
Sociologist Dr Frank Furedi has studied the long-term effects of children going through the court process, and he warns that children are being manipulated by embittered parents when they bring cases.
And they have nothing to gain from family court battles but further misery.
Dr FRANK FUREDI (Sociologist, Canterbury University): There used to be a time when the courts hardly ever intervened when it came to wives and husbands and their children. People used to say that courts are for strangers, they don't want to get lawyers involved.
But increasingly they are seeing the legal process being pulled into family affairs. They're also seeing children directing this process against their own parents.
EWAN: Ten-year-old Yasmin was caught up in a court battle between her mother and father after they separated when she was younger. Her mother had custody, and fought to stop her father having contact.
MARYANN GRAY: The court decided that he should have access, to see Yasmin, and Yasmin wasn't happy at that, she didn't want to see him, because she'd never really, you know...he wasn't really there for her as a father, he was just like a stranger.
She didn't want the access, so that's where we had to fight it via the court. When he was coming to collect her, and because the courts had granted him access, she was screaming, she was upset, she wouldn't come out of the house.
He was saying that I was causing her to be upset because I was telling her stories. I wasn't. She was genuinely upset, she would be in the toilet with an upset stomach, she'd be crying, she'd be locking herself in the room.
YASMIN GRAY: I didn't like and I didn't want to go when he came.
YASMIN: Because, em, I was scared to go.
EWAN: So what do you think of your father?
YASMIN: I don't think he is a nice man at all.
EWAN: And how did you feel when you had to go away with him?
YASMIN: I didn't like it.
EWAN: What about in the mornings before you went, what were you like then?
YASMIN: I would cry sometimes because I didn't want to go.
EWAN: And how did you feel about your mummy making you go?
YASMIN: Well, she didn't make me go, it was I had to go because of the court said he had to get access of me.
MARYANN: It was traumatic, you know. You were worrying about her. She was upset, you don't like your kid being upset, and you were handing her over to someone she didn't want to be with. And it's like handing her over to a stranger.
EWAN: There were no concerns about Yasmin's welfare when she was with her father, but Yasmin's mother appealed against the court's decision.
And Yasmin was angry at being forced to see her father against her will. She'd never lived with him, and felt uncomfortable in his company.
EWAN: How did you feel about the fact that the court could make you go with somebody you didn't want to go with?
YASMIN: Well, I just had to like...because I wanted to make my own choices.
MARYANN: He pushed, and pushed, and pushed. My own personal opinion was it was a means of getting back at me. But then people would say that I would be looking at it from a vindictive point of view. But I could see what it was doing to both of us.
EWAN: Yasmin's mother turned for support to a single parents' group which told her about a local solicitor, Frank Collins, who represents children in court. He came to see Yasmin, then eight, to judge whether she was mature enough to employ him as a solicitor.
FRANK COLLINS: Hello Yasmin.
FRANK: How are you?
YASMIN: I'm fine.
FRANK: Remember I spoke to you last time about going to court?
FRANK: Yasmin's mother and father had already been fighting through the courts for, I think, over a year on the issue of whether or not there should be access.
The mother had lost the case. Access had been ordered.
And when she told Yasmin the outcome Yasmin became very upset, and indeed angry, about the fact that she was told she had to see her father. That was not what she wanted.
EWAN: What did she want?
FRANK: She wanted to be heard to the extent that she did not want to see her father. And despite the fact it had been ordered by a sheriff she said: "I don't want to go", and had very clear reasons for that.
FRANK: Do you remember why I gave you that teddy bear?
FRANK: Why did I give you that?
YASMIN: In case I get worried.
FRANK: And what have you to do if you get worried?
YASMIN: Squeeze its hand.
FRANK: And does that help you?
EWAN: When Yasmin's view was presented to the court her father eventually agreed to withdraw his contact claim. That meant that Yasmin no longer had to see him and his regular visits ended.
You won your case...
EWAN: How do you feel about that?
YASMIN: I'm very happy because I got rid of my dad.
EWAN: Do you not feel a bit sad about that?
EWAN: Why not?
YASMIN: Because I don't want my dad in my life any more. It's like a miracle.
EWAN: Happy ever after.
FRANK: There was never any doubt from the outset. She was a very determined little girl. Not only could she express her view, but she could express very clear reasons why she had that view.
And remember I was looking very carefully to see whether or not she was expressing a view which was not her own, particularly that of her mother.
Her mother was very opposed to the idea of contact having fought the court case. It was inevitable that some of the views would have rubbed off on Yasmin, but Yasmin had formed her own mind on this one, and that was very clear.
The situation now is that Yasmin does not have contact with her father.
That continues to be her wish. Her mother will continue to keep her father's memory alive so that if Yasmin, in later years, wishes to see her father there will be no problem with that.
But at the moment she is still of very much the same view.
EWAN: Is there any doubt in your mind that this was the best recourse?
FRANK: It is always sad if a father isn't seeing his child. But we can't have children forced against their very deep-seated view that they don't want to see their father. And I think, therefore, given those very clear views, this was the best result for Yasmin.
EWAN: Will you ever see your father again?
EWAN: How happy are you that you finally got your own way?
YASMIN: Very happy, because it's just me and my mum again.
EWAN: The legal system has been slow to become child friendly. Psychologist are concerned that children's real interests are not always properly heard in courts. They also warn that children can be manipulated by parents, even unwittingly.
CHRISTINE PUCKERING (Child Psychologist): There's obviously a lot of opportunity for parents to use children as weapons.
The children can be manipulated. That can be done maliciously, but I think also inadvertently - it is quite easy.
Children hear what parents are saying about each other, and if parents are being extremely negative about the other parent the children will hear that.
But they have a relationship with the other parent too, so that builds up a division of loyalties for them. If your father, for example, has just left the home you don't upset your mother. Maybe she will go too, and maybe you will lose both parents. So just in terms of enlightened self-interest, children might choose to be more influenced by the parent they're resident with. And that might be inadvertent, and unconscious, as well as malicious.
EWAN: Allison Cleland is a campaigning Scottish child law expert. She believes that children should be helped to stick up for their rights in family disputes.
ALLISON CLELAND (Child Law Consultant): Children's rights are vital because if you don't have rights you don't have respect from society.
If you have rights, legal rights, then you have a chance to be heard, and to put your viewpoint. And if you don't, then if something bad happens to you, or you've got something to say, you'll be ignored. If you ignore people in society then anything can happen to them, and they're not valued.
My clients would normally come because their parent's solicitor would have suggested that the child should have their own lawyer. Occasionally I would accept that perhaps the parent thinks it is a good idea.
I must stress that if a child comes to a solicitor they will be seen without the parent, and the solicitor will have to judge whether that young person wants to have a lawyer or not.
It is up to the lawyer to decide, so that if there are pressures on the child the lawyer will have to try to work out what those are and make a judgement about whether that child really wants to have a lawyer.
EWAN: The traditional stuffy image of a solicitor is not one which mixes easily with a child's eye view of the view.
Christine Puckering is helping to bridge that gap. She runs courses for solicitors who take on young clients.
At the moment there is no requirement for any training, even though solicitors are in the front line in protecting children¿s' rights in and out of the courts.
CHRISTINE: The burden has fallen heavily on the legal profession. The lawyers are having to deal with clients who are younger, and their expertise is in the law, not in child development, not in communicating with children.
I think that they are working very hard to catch up to increase their skills in communicating with young children, and helping young children to communicate with them. Lawyers will be less likely to mislead and confuse children, and perhaps inadvertently lead them to express views which are not their own.
I think that the children are often caught in the middle. They don't want to have to take sides. They don't want to have to decide between mum or dad. They want to have a relationship with both parents, and I think that if we can be very skilled and sensitive in the way we help them to communicate then that is to their benefit.
Dr FRANK FUREDI: I think lawyers are benefiting from this. It's not that... I would not hold them responsible for initiating the process. I think there are strong cultural pressures in this direction.
But enterprising law firms are obviously able to use this as a way of increasing their business, and also as a way of expanding the areas for which people can now go to court.
Children suing their parents is one such innovation.
EWAN: Tim Shread is 19, and has started college in Aberdeen. He wants to take his mother to court.
TIM SHREAD: I read in the newspaper about another student at university suing their parents for maintenance, and he won the case. So, I thought, well, that's what I'll do. I went to see my solicitor, asked him about it. He said yes it was possible, and it would be okay. So, I said, okay then, we'll pursue that case.
EWAN: Tim now lives with his father in a small council house in Inverurie - a long bus journey from college. He stopped seeing his mother when his parents split up four years ago.
MICHAEL SHREAD: The first thing I found after she'd left was that she had been having an affair, and I immediately started divorce proceedings, and made claim also that I have custody of Timothy.
She fought the custody. Timothy was interviewed by a sheriff at Banff Sheriff Court, and Timothy quite clearly stated that even if the court awarded custody to my ex-wife, to his mother, he would not obey that instruction, he wanted to remain with me.
EWAN: Tim's father received money for his son through the Child Support Agency. But that ended when he was 18. Tim now gets around £200 a month for the college bursary.
TIM: I'm getting a little bit from the college, but not enough to keep me going. So I just need that little bit extra just to keep me going through the month, because I mean, the money I do get usually runs out by half way through the month.
EWAN: Should you not be supporting him?
MICHAEL: At the moment I'm unemployed, so obviously the amount of money I have available needs to go on bare necessities like heating, light, food, and council tax, and other debts.
TIM: My mother has paid absolutely nothing towards my upkeep, and I don't think that's fair on my father for one thing. And I think that she is my mother, therefore she should pay something towards my upbringing.
EWAN: If you are successful will it not cripple her financially as well?
TIM: Well, I mean, I wouldn't be that cruel as to leave her with nothing at all, but, em... she should be able to afford it, she's earning a decent salary.
EWAN: Could it not be construed as vindictiveness?
MICHEAL: I suppose some people could say that it is vindictive. That absolutely is not the case. This is a matter of necessity.
EWAN: Legislation in 1985 meant that parents have a duty to support children in full time education up to the age of 25. It has been mainly students suing estranged parents following a family break-up that have used the law. Tim's decision wasn't taken lightly.
Was it pretty traumatic?
TIM: It can be a long haul. It can take a lot out of you. But, if people are going through the same thing I have then I think that they should do it.
EWAN: Do you regret starting the action?
EWAN: Because it must ruin any potential reconciliation with your mother, it must make things very difficult.
TIM: She already ruined that a long time ago. From all the lies she's told, and all the things she's said and done. She's already destroyed any chances of that.
ALLISON CLELAND: As far as I am aware a child's right to education is one that we view very highly. And if the only way that a child can go to university or college is by getting money from a parent who has got the money but hasn't given them it, then I think that's a legitimate aim.
CHRISTINE PUCKERING: There is room there for manipulation, but I think often parents are very bitter. Divorce can be a very painful experience, and there can be opportunities to hit back at the partner financially. But that's the parents' agenda, it's not the children¿s' agenda, I believe.
EWAN: Most disputes are settled informally, sparing children the trauma of going to court. But the number of cases brought is growing - and Dr Furedi has discovered that Scotland is leading the way.
Dr FUREDI: I think it's certainly everywhere, but I was quite surprised to see that the number of cases in Scotland, for example, in the Glasgow area seem to be far more prevalent.
I'm not sure whether it is because they tend to be settled in court rather than out of court, but you must realise that for every court case there are about 90 cases that are settled informally. It definitely seems to be the case that in Scotland a large number of people who are now prepared to sue their parents are university students.
But adults seem to be using their children as a way of settling scores, so yes, Scotland seems to be at the cutting edge of this process.
EWAN: But it's here in America where many look for a vision of the future of children's rights. Cities like Chicago, where 20,000 children were involved in cases to divorce their parents last year.
Jessica is typical of thousands of American children caught up in a tug of war between biological parents, the State and prospective adoptive parents. She's now 11, and happy. But she had been miserable for years.
JESSICA: It really wasn't great because like, every day they'd fight, and they'd fight about like...all the little things, like how come you're never here, and I always watch the kids. And then he'd bicker you never watch the kids, all you do is you sit around watching TV, the kids...Jessica would tell me, and they'd like yell, and they'd fight, and they'd throw stuff. And when she woke up she would just stay by the TV, and watch it all day. And I'd usually get my own food, and pretty much what I could only reach was peanut butter, and the butter.
EWAN: Under US law if a child wants a legal separation from her biological parents it is the State that appoints a lawyer to act for her, effectively divorcing her unsatisfactory parents. Once she is divorced she is then free to be legally taken into another family.
EWAN: Many people would say surely the best place for Jessica would be with her mother...
JESSICA'S ADOPTIVE MOTHER: We hear that occasionally. We even had one social worker who thought that. And, em...
JESSICA'S ADOPTIVE FATHER: It's kind of one of the reasons why the adoption was delayed...
JESSICA'S ADOPTIVE MOTHER: Delayed... the adoption was delayed. But knowing Jessica and her needs and her talents, and I think that all of the professionals involved with us have made the right decision. And I truly believe that she almost was placed here by a providential hand...(laughs)...
EWAN: Isn't it difficult to replace a biological mother?
JESSICA'S ADOPTIVE FATHER: I mean, as far as what a parent is, I think biology sometimes is overplayed, because there's a lot more to parenting than just producing offspring. Not that we'd make any judgement...but I think there certainly is validity in terms of what the activity, the verb of parenting is.
EWAN: Is it easier for you though, as the new mother, to have that?
JESSICA'S ADOPTIVE MOTHER: Yes, it was easier for me, and at one point when we said parental visits would have to resume I was very upset. Em, not because of myself, I have no problem with it. I was very upset with the thought of resuming those visits putting Jessica in any state of insecurity, or questioning about where she would be in the future. That made me very upset. So I did actively fight resuming biological visits. And I would again should that ever come up, until she's older. And we have no problem with Jess wanting to see her biological mother if she's older, but not now...(laughs).
EWAN: What about your mother, do you miss her?
JESSICA: Sometimes I think of her, but I really don't, I don't miss her that much. It's like...it's almost like you knew someone, like a friend, and then like, your friend moved, so you don't think about them too much because you move on with your life, and you have, like, new friends and new family and stuff, you know.
EWAN: But many think things have gone too far. And there's concern that parents could now be challenged in court by their children not because of abuse, but simply about the way they are being brought up.
MALE: I think there is a conflict in giving kids the power to bring that kind of action against their own parents.
EWAN: Because that must sound alarm bells through every parent in the country.
MALE: It does, it really does. I don't want to be sued by my children. I mean, I have decisions that I make every day that my kids aren't always happy with, and I like to think that nobody's going to bring me into court unless I do something really awful.
But I think that it does raise some concerns for parents who maybe are not raising their kids in ways that are really popular. I don't think it's so much of a concern about what my kids wear or what they eat. But I imagine if I were in a situation where I were practising some very unusual religion, or something that made me unpopular in my community, would that become a basis for something to say, well, I'm no longer a good parent, and that would scare me.
EWAN: Scotland has yet to have the case of a child divorcing their parents. But children are increasingly engaging lawyers to represent their interests. The concerns remain about how far the process should go.
ALLISON CLELAND: Ideally you wouldn't want anybody to have to go to a lawyer to sort out any kind of personal problems, such as divorce and family situations.
But very often adults can't agree. And where adults can't agree, then, at the very least, the child should have a chance to influence the court process. There is no way of influencing the court process other than having a lawyer, or, say, writing to the court on your own.
You would hope most children would never have to go to lawyers, but those who are in difficult situations, if they want to have some say in what happens to them, a lawyer is the way to do it.
Dr FUREDI: If you believe for one second that a child's best interest is served by going to court then we have to look at what happens to them afterwards - the way that it breaks up relationships, the way it makes it impossible, almost impossible, for those children to ever re-establish solid relations with other adults and their parents.
I think it is a very, very high price to pay for this process, especially for the children.
EWAN: Nicole Lavelle waits to hear if she has won her court action to force her father to pay her school fees.
Yasmin is happy that she managed to remove her father from her life.
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