In proceedings in the English family law system, a girl I know well was "consulted" at age three by a guardian ad litem (GAL), concerning whether she preferred her mother or her father, writes John Waters.
The child was in her father's care, but the situation was being reviewed by the GAL, who had been appointed to, supposedly, represent the child's interests.
The GAL's representative had come to interview father and daughter and survey their accommodation. When he had been interviewed, the father was asked to leave so this "expert" could talk to his child. He left the room, having taken the precaution of organising a means of surreptitiously observing the interview. The child was drawing at the living room table. The official, a female, began by asking the child what she was doing. "Drawing", came the reply. Then, the small talk over, it was down to business
"Which do you prefer," asked the official, "your daddy or your mummy?" The child paused briefly, looked pitying at the official and chuckled. The official tried again: "Now, I want you to answer, because it's a very important question. Who would you prefer to be with, mummy or daddy?" The child chuckled again. The official, clearly motivated by exhaustive training, made a third attempt. "No, seriously, who would you prefer to be with?" The little girl put down her pencil, pointed to the official and emphatically declared: "You." From the mouth of an innocent child came the wisdom of the ages. Translated from babytalk, in which I have acquired some fluency, the child's response meant something like this: "That is like asking which of my legs I like best. I find the question so ignorant and insulting that I can only reply that, if forced to choose, I would prefer to be with a stupid, ignorant official than to make the choice with which you are stupid and ignorant enough to confront me."
There is only one term I can think of to describe efforts to involve a child in choosing between his or her parents, and that term is "child abuse". But Carol Coulter, who is employed by the State to conduct a study of the family court system, now seems to be pressing for such an approach. Speaking at a recent conference on the impact of divorce on children, Ms Coulter appeared to criticise a judge who, in a case involving custody of a 4½-year-old girl, had not "consulted' the child. "There was no consultation with the child whatsoever and no independent evidence of any kind," Ms Coulter said.
This observation, if I apprehend it correctly, betrays a fundamental ignorance of what the family law system is there to do. Although you would sometime wonder about this, parents appearing before family courts are - in theory - not accused of any wrongdoing. They are simply seeking the assistance of the court in resolving their differences. Usually they remain guardians of their children, in whose interests they are presumed to be acting. There is no more reason for parents who happen to be separating to be scrutinised by "independent experts" than parents who are living together. And there is certainly no reason why parents who are separating should have their children called to give evidence against them. Yet this latter can reasonably be inferred as Carol Coulter's preferred approach.
Speaking at the same conference, the Minister for Justice spoke some uncharacteristic sense on this subject. He said that, while the proposition that children implicated in family law proceedings should have separate legal representation might seem "attractive", it was not necessarily a clear-cut matter. "The question is: who decides who should represent the child?" Mr McDowell asked. "What values and prejudices will they bring to the table? The choice of who represents the child will be a choice about what the arguments were, and whoever made the choice would be adding their voice to the mix." This is indeed one of many problems with guardians ad litem.
The very choice of a GAL is decisive as to the outcome, because that choice involves the simple lifting of a particular ideological agenda from a particular peg. The appointment of a GAL in effect nullifies the authority of parents and court. The power to decide the outcome is devolved downwards in a series of moves: from the court to the guardian ad litem and then usually to an "expert" engaged to assess the family. This "expert" becomes, for all practical purposes, the court.
Having an expert witness to take responsibility for a decision is something that appeals to judges, who rarely regard themselves as "experts" on child welfare. It suits them to have pieces of paper backing up their orders. Thus, the report of the expert witness is almost certain to become the judgement of the court. Since that much-abused term "the best interests of the child" has never been give any objective definition, it is a piety capable of being attached to any opinion. Because there is no process of accountability, an expert witness can mould and shape the evidence in whatever way he or she pleases, in accordance with ideology, prejudice or convenience.