Avoid Courts to Lessen the Pain of Family Break-Ups

First published in The Times

12 November 2020

Helen Adam, Charlotte Bradley 

We need to move away from legal disputes for separating families to help to build better relationships and cause less harm.

Society’s approach to divorce and separation has to change.

The family court is stretched beyond its limits by vast numbers of separating parents who disagree about the care of their children. More significantly, our adversarial legal system is a blunt instrument for families going through vulnerable periods in their lives.

A report published today by the Family Solutions Group calls for a rethink. The group was set up in January by Mr Justice Cobb with a remit to consider the needs of separating families before they turn to court. It argues that family law issues — particularly those involving children — must be approached differently from other legal disputes.

First, a legal response to parental disagreements over their children is inappropriate for many, and actively harmful for some. Many disputes about children flow from unresolved emotions caused by the circumstances of relationship’s breakdown. These are relationship issues rather than legal matters. The report suggests a move towards a child-centred, relational approach.

Second, research is clear that parental conflict harms children, affecting their long-term mental health and future life prospects.

Too many children are silent victims of our legal system, with childhoods lived against a backdrop of family conflict. In the vast majority of cases children have no voice in the process.

Today’s report calls on the government to establish a family minister to co-ordinate policy and provision for separating families, beyond the administration of justice.

It advocates public education to reframe our cultural response to family breakdown away from an adversarial legal environment towards a child-centred, relational approach.

Too many parents who separate on difficult terms expect to fight over their competing “rights”, rather than co-operate over their shared responsibilities.

Too many children are silent victims of our legal system. And the report recommends a range of other reforms, including improved information and support for children, with those deemed old enough being consulted on decisions that will affect them.

The report calls for early triaging with parents to assess needs and direct them either to a “safety pathway” for vulnerable families who need access to the family court, or to a co- operative parenting route away from court to promote a long- term parenting relationship. This is not easy for many separating parents. Hence the further recommendation that parents access a holistic range of support from therapists and mediators alongside legal services to help them to resolve issues together.

Compulsory training for all those who practise family law is crucial because it will raise awareness of the psychological implications of separation on parents and children, and the risk of harm that parental conflict has on children.

The report’s recommendations also call for the code of conduct of Resolution, a family law organisation, to be applied by all legal practitioners. All lawyers must acknowledge the impact our conduct has on separating families. At the end of a case, how often do we consider the state in which we leave the parenting relationship and whether parents will manage co-operative parenting in the future?

Today’s report is ambitious — but significant change is needed to give better results for families.

Helen Adam, a mediator and former solicitor at Wells Family Mediation, chaired the committee that produced today’s report; Charlotte Bradley, the head of family law at Kingsley Napley, was a member of the committee