KEY POINTS:
Your parental rights are removed. It's a loving parent's worst nightmare. It happened in a Waitakere Family Court case the Weekend Herald covered just over a year ago. After a gruelling two day hearing in December 2005, judge David Mather continued placement of an 11-year-old girl, at the centre of an intractable dispute, under the guardianship of the Family Court. A Child, Youth and Family Services (CYFS) social worker, who had been involved in the case, was appointed agent of the court and, as a condition of the wardship, the judge ordered the child to live in the day-to-day care of her father. Initially - to lessen the acrimony between the parents and the harm that was causing the child - the mother was restricted to day-time-only contact with her daughter.
It doesn't happen often, but this is what the Family Court does when separated parents refuse to agree - it steps in, takes away their guardianship rights and makes the child a ward of the court. In effect the court becomes the parent.
Under wardship someone else - often a CYFS social worker - is appointed an agent of the court and has the final say in all decisions affecting the child, depending upon what the judge's orders allow. Both parents can still be involved in their child's life, but only in accordance with the rules set down by the court and managed by the court's agent.
"This is an intervention by the court that I don't think anyone believes is something that should happen," says Family Court lawyer Judith Surgenor. "But it's an intervention that is a kind of necessary evil."
A year later the wardship imposed by the Waitakere court is still in place, but progress - albeit in small steps - is slowly being made. The cost, however, has been enormous. The case, which spans 10 years, has involved several combinations of parenting arrangements, numerous court orders, court warrants to enforce court orders and six psychologist reports.
By the end of 2005, the father told the court his legal bill had reached between $60,000-$70,000. Similar sums are likely to have accrued in the work carried out by the lawyer for the child and the counsel representing the mother, who was able to access legal aid. Add to that the long hours put in by psychologists, social workers and court-appointed counsellors, not to mention the judges' and other court workers' time, and we estimate this case has cost at least $500,000 - the bulk of it at the taxpayers' expense.
The parents in this case are not bad parents. There is no neglect or physical abuse of the child and both mother and father clearly want what's best for their daughter. There has, however, been a decade of emotional abuse caused by never-ending arguments between the parents and an inability by the mother to accept or understand the father's role.
But in late 2005 there seemed to be a breakthrough. In the afternoon of the second day of a hearing that had trawled the sorry detail of the parental conflict, the mother burst into tears and told the court: "I want the conflict to discontinue. I do think that with the monitoring that CYFS provides and with support from a third-party mediator, it is probably best if [child's name] lives with her father."
Judith Surgenor who has been lawyer for the child for almost a decade - beginning when the the girl was 2 years old - was a little apprehensive when all the parties were due to meet in her Henderson offices in the week following the hearing.
"It was remarkable because those two parents had never been able to sit in a room together and be civil. The only times I think they ever actually sat in a room together was at court or in a mediation conference."
Much to Surgenor's surprise, the parents chatted amiably, hugged and kissed their daughter when she arrived with her paternal grandfather who she had been living with for the the previous few months, and seemed at ease with each other. Surgenor then took the daughter aside to explain the detail of the new living arrangements. The child was equally astonished to see her parents talking to each other. "[Child's name] was amazed that they were talking civilly and in a friendly manner," says Surgenor. "She was quite taken aback by it. She said, 'I can't believe it'."
Despite the great start, the year was not plain sailing. The daughter had to adjust to a new school and new day-to-day living arrangements with her stepmother and stepbrothers. Inevitably, the new family dynamics put a strain on all. There were times when it appeared the arrangement was going to fall apart. Surgenor credits the diligence of the CYFS social worker assigned to the case for keeping everything on track.
Regular meetings are still held with the parents to work through difficulties and to try to get them to agree. When they don't, the social worker as agent of the court, has the final say. Arrangements for contact with the mother - which has been extended to weekly overnight stays - are meticulously timetabled, showing pick-up and drop-off times and places to lessen another regular area of conflict.
But old habits die hard and decisions about the child are still seen as sites for the parents to assert their power and control over each other, rather than an opportunity to put the child's interests first.
Surgenor gives an example - the child's inoculations. "The argument was about which doctor and who would arrange it. Dad said it could happen through the school. Mum said, no, it should be done through a doctor - the one [child's name] had gone to in the past. Dad said, no, they would take her to the doctor they took their other children to. In the end the social worker had to decide."
Surgenor sighs. "This is why we are still in this case now when the girl is 12 - because they have never been able to sit down and have any give and take. It's been 'what I want' all the way through."
When the case went back to the Family Court for review in February, the judge directed the parents to go to counselling over their inability to communicate and to try to resolve that. The child was also seeing a counsellor regularly for most of the year.
Surgenor says the counselling has helped but the parental friction is never far away. "If we [lawyer for the child and social worker] walked away, we would be back in court having big disputes - I'm absolutely certain of it."
The fundamental problem in the case as identified by the court-appointed psychologist is parental alienation - a form of relationship aggression by one parent against the other parent using their children. Children caught in the middle of parental alienation conflicts are often forced to choose sides and become allies against the other parent.
In this instance, the mother has been the alienating parent. Her behaviour as cited in the court included: pressuring her daughter to prefer being with her; being negative about her father to her daughter; and unduly influencing her daughter by inappropriately involving her in adult issues. Even when the daughter was living with her grandparents, the court heard how the mother continued to try to influence her daughter via phone calls, text messages and email.
The situation presented a dilemma for the court and particularly the lawyer for the child who, under the Care of Children Act, is required to represent the child's interests and take into account her wishes. In this instance the child expressed a preference to live with her mother but, in a context of being unaware of the pressure she was under to please her mum. The court psychologist was concerned about how the child would ever form trusting relationships when she has never had this demonstrated to her.
The problem was vividly expressed at the very start of proceedings when the child was aged 2 in a home video shot at the mother's house showing the changeover after the child had spent some time with her father. "Mum thought it proved that dad was being abusive," says Surgenor. "What it showed, to my horror, was mum, her partner and her partner's mother yelling at dad out the window - 'get off my property, go away'. And here is this little kid being subjected to that as she ran up the driveway on her own and fell over. All it showed me was the abuse that they had no awareness of."
To this day Surgenor wonders why the mother couldn't have gone down to the gate to meet her young daughter and asked if she had a nice time with her father.
"I've seen worse bitterness between people than this case. I don't even know that [parents' names] hate each other's guts. It's like they have got into this pattern and that's how they seem to expect to behave with each other. There is just no need for it - it's got to be something psychological in one or both of them that they just can't move on from the bitterness they've had in the past.
But in the context of a dysfunctional relationship, Surgenor says the progress is huge. "The positive is that it does seem to be coming right. It does seem to be working and none of us expected it would all resolve, given how long it's been happening. But the conflict now is way less than before." Meanwhile, the wardship stays in place - and is likely to remain so for some time.
Surgenor describes the situation as an enforced compromise. She's constantly impressed with the child's resilience in the face of what she has to deal with. "The last time I saw her was at school. She's liking her school and talking enthusiastically about things and getting on better with stepmother. She's a lovely girl - a mature, really pleasant girl." Surgenor is pleased, too, that the child is beginning to get separate benefits from both households - active, sporting activities at her father's and creative, craft experiences at her mother's.
If there is a wider perspective to this case, Surgenor says it's that both parents often want a role in their child's life and the child deserves to be allowed to have a life with both parents. "One of the things I do say to parents is that children must be allowed to love both parents. A lot of parents can't accept that the child loves the other parent too."
