A broken process – why the drop in family law applications is a symptom of a wider issue

Following a recent story in the Law Society Gazette about the drop in court applications for family law cases, Robert Williams argues that this tells a bigger story about the failure of the court system to help individuals reach the best outcome for them and their children.

The introduction in the Law Society’s article suggested family lawyers were warning “separating parents are giving up on the courts and may take the law into their own hands in trying to see their children”. That got me thinking about how and why we use courts.

The implications for children are obvious where one parent gives up. As a society we should be looking at ways to address the impact this will have on the parents of the next generation. The warning signs are there. Legal Aid has been removed. There are many lawyers who do not see the benefit in mediation, or are down-beat about the process. What hope do clients have when they see mediation as a stepping stone to court rather than a process to resolve matters? We get regular calls where the client says they need a MIAM form signed. The call is without any thought to seeing if the process will actually work, and often without a willingness to try. Have they really tried talking with a skilled mediator to see the merits of the process?

Whilst there are many expert family lawyers focussed on the child there is still a cohort of lawyers hiding behind “the best interests of the child” mantra. I hear my colleague talk to prospective clients on the telephone and never cease to be impressed that the child is at the centre of her discussions. She doesn’t get sucked into the drama and the validation we see so many other lawyers giving their client’s case; she is interested in how the child is and how the child will be. Everything flows from that.

I remember getting it in the neck when seeking an Independent Social Worker on a case involving two intelligent parents by a Judge who, condescendingly, reminded me that he was there “to judge”. I got that, but what he didn’t grasp was that the underlying issue was not a legal one, but was about their separation, and unresolved issues which meant they both needed help in seeing the issues through the lens of their child. The Judge was going to decide who was right but that wasn’t helping them.

They really needed someone to work with the family to look at the issues in detail, to understand the family and find a way of addressing the cultural issues that were causing the blockage on the legal issue. What they didn’t need was the lens of someone they had never met before who knew little about them, but who was expert at crafting a decision based on the evidence before them. Like an iceberg, the real damage lay below the surface and a well reasoned and un-appealable judgement was not going to address this. The judgment was like a sticking plaster over a haemorrhage which was bound to erupt at a later date on another issue.

But wasn’t it in many ways ever thus? Ah but at least the court was there to resolve the argument. The simple fact is the court should be seen as the last resort, whereas it was often the first port of call. Put simply, the court is slow, it can be inconvenient to one or both parties and it’s costly (whether to the parties or society at large). Most significantly, since when has a court been capable of properly addressing the issues? Of course, decisions can be made by the courts under the new Child Arrangements Orders just as they could for custody, access, residence and contact. But ask yourself how that helps. Might it increase the resentment and tension? The court was also often a venue to maintain or challenge control. Remember the cases funded by legal aid over whether the unmarried had Parental Responsibility? Did the opposition really have merit? In some cases yes, but weren’t they more often part of the ongoing fallout of the separation. Invariably it wasn’t about the law or about a father’s legal status but how decisions were reached by individuals hurt by life events? A chance to get back and take control? Isn’t that often the driver about whether the child is with the parent from 10am to 5pm when the request was 10am to 6pm? Should we as society pay for those disputes?

So what’s the answer? If possible, address the underlying issues. If they are resolved then the blockages that end up before courts for determination, such as 10am to 5pm or 10am to 6pm on alternate Saturdays, have a chance of being resolved without the need to involve others who will end up imposing the decision of you.

I have no doubt children are being denied access but both parents need to start asking what part they play in the process. The focus should be on getting to the bottom of the issues between the parents not letting them fight it out before a tribunal (whether funded by the tax payer or otherwise).

I am under no illusion there are many cases where court intervention is needed or where there is no chance the underlying issues will be addressed. However, if the focus was on the symptom then addressing that will take pressure off a court system already creaking under the strain.

The simple fact is that as a society we need to find better ways of helping individuals through separation. There are a number of alternatives to the court process (outlined in an earlier blog of mine).That will ensure those ending up in court are the ones where the experience of a judge is required. Quite how most people afford that “luxury” is another issue…