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Family Law

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08 SEP 2011

Regulating emotion: judging contact disputes [2011] CFLQ 63

 

This article examines the decisions made by judges in contested contact disputes and, in particular, the discourse that judges deploy to make their decisions seem unchallengeable and inevitable. It also examines the way in which they construct the problem, and so the parties, before them. The researchers analysed all reported contact cases between 1994 and early 2010 to identify the discursive strategies used, choosing those cases which best illustrate, or indeed contradict, the themes identified. Using the categories devised by Lazarus-Black in her analysis of 'court rites', as well as others developed for the purposes of this study, the article highlights the use of well established strategies such as the reliance on harm warrants, the delegitimisation or trivialisation of complaints, and the humiliation or stigmatisation of parents. However it goes on to note that, increasingly, contact disputes and their protagonists are pathologised. The problem is constructed by the courts as one of conflict fuelled by the irrationality of dysfunctional parents. The solution, therefore, is seen as the elimination or reduction of conflict. To achieve this outcome, courts see it as their duty to deal with the underlying causes. They accordingly see it as their task to make contact 'work' by managing the emotions of the parties. This they do by means of rebuke, appealing to reason and by instructing parents to put their feelings aside in the interests of their children. In addition, at least where all else fails, they have come increasingly to see the answer as lying in therapeutic intervention or possibly, in the light of the amended Section 11 of the Children Act 1989, education for parents; what is needed is a 'cure' or enlightenment. The article observes that the courts' ability to refer parties for such intervention has now become part of the judicial disciplinary toolkit, backed up by sanctions. It suggests that the growing use of therapeutic measures can be oppressive for parents, particularly mothers, and that, in any event, neither therapeutic nor educational intervention may have the expected results.

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