We Need to Talk about Justice
For 20 years, there have been moves within the family justice system to direct couples towards conciliation processes and away from litigation. Never was this more so than in the pre-LASPO plans for couples to choose mediation rather than representation by solicitors. But for all the language of conciliation and cooperation, the results have been disappointing. The legal aid mediation starts are around half what they were pre-LASPO and the courts are filling with conflicted, unrepresented families, almost to breaking point – for the system, the judges and the families themselves.
Nick Goodwin from the Ministry of Justice has spoken at this conference of having 'user need' at the heart of reform with an aim, amongst others, of improving 'access to justice'. This raises two questions: in a family breakdown situation, who is the 'user'? And depending on the answer to that question, is improving 'access to justice' the right goal? If we are to take s 1 of the Children Act 1989 seriously, then I suggest not. If the welfare of any child of the family is to be the paramount consideration, then we need to find a different approach to family breakdown.
The current system
There is little wonder that the take-up for mediation has been disappointing in the current system. First, there has been no funding to raise the profile of mediation. It is often said that mediators must be optimists but never was there such blind optimism as by the government in their LASPO aspirations for sep arating couples to choose mediation without any investment into marketing the mediation route. Not surprisingly, many people still do not know what mediation is, when it is suitable and how it might help. There is confusion about mediation even from professionals within the family justice system, so what hope is there for the general public? Some serious funding and education about mediation is urgently required.
But there is a bigger issue to address: Why would people choose mediation when the language in the system is all about justice? We have the 'family justice system', the 'court', the divorce has a 'petitioner' and a 'respondent'. The whole system is driven by rules and regulations developed over many decades (even centuries), formulaic and structured. The expectation is of justice. And the outcome is referred to as an 'order', or for those unfortunate enough to go all the way to a final hearing, a 'judgment'.
The language and context is wholly adversarial; one against the other, as in a boxing ring. Against that background, there is inevitably an instinctive need to protect oneself. So, naturally, the first call would be to a solicitor, a legal professional who will defend and maximise the client's position. Sadly for many families, the s 25 factors encourage further adversity. The outcome is unpredictable because of the judicial discretion over their application. So one client is advised of one outcome, and the other is advised of a different outcome. Couples who hope 'the system' will help them to resolve things simply are thrust into adversity instead. However much we within the system think we are directing couples to conciliation processes, the reality is that it is still the door of the court which beckons. The system invites couples to climb into a boxing ring, guard up and present a fighting stance and the ref then tells them that it would be better to go and have a chat instead – what muddled messages we give! And if the chat does not work, then back into the boxing ring they go.
The invitation to mediation is completely different. The outcome fits within an understanding of justice, but everything else about it is different. The language is of working together, difficult conversations, finding solutions. Instead of handing over the problem to another to resolve, the responsibility for resolution stays with the clients. The context is far from a boxing ring – it is the post-separation equivalent of the kitchen table. The discussions are difficult, as indeed they would be if the couple were still together and had an issue to resolve: shall we cash in our savings or shall we move Ben to a different school? Where there are conflicts, these get worked out round the kitchen table or its equivalent. After separation, the same principles apply. There are issues to resolve and, in mediation, it is the context of working through a problem and finding an acceptable way forward. It is uncomfortable and brave - because difficult conversations are never easy.
And the outcome is totally different from the court route. Far from receiving a 'judgment', the couple try to find an acceptable way forward. It is their solution for their family. It means the next time an issue arises (as it will, if there are children) the couple are that much better able to manage it themselves. The difficult conversations create an opportunity for the couple to transition from being parents with a failed relationship, to two separate individuals who can embark on shared parenting for their children. Why would the invitation to me diation hold appeal when the system invites couples to take defensive positions in a quest for justice? The reality is that family breakdown remains an adversarial process under the banner of justice.
What is the 'user' need?
The reforms for the future must be driven by need. I will look at these under three headings, the needs of the state, of the separating couple, and of the children.
The needs of the state
Most obviously, the system needs to be manageable and affordable in the modern climate of relation ship breakdown. Sir David Norgrove in the Family Justice Review urged the government to promote a collaborative approach rather than adversarial approach. He continues to advocate a fundamental change of culture and legal framework and he voices his concerns that reforms so far have failed to address this effectively. The Review spoke of providing the 'least worst outcomes' for families. Many judges seem to concur with this – most of their cases are about solutions rather than justice in the purer sense. There are, of course, cases where access to justice remains important and the importance of the justice route in those cases cannot be undermined. But they are a small percentage – the judges I speak to say they are probably under 5% of all private cases they do. At the moment, the whole system is geared towards the needs of the few - with great collateral cost in money and stress to everyone. The system must meet the needs of the majority and not be driven by the needs of the few.
The needs of the separating couple
At a difficult time of relationship breakdown and against the current court backdrop, it is a natural instinct to protect oneself against the other in order to ensure a fair outcome. Hence the first call to a solicitor. But there is plenty of research to show that separation and divorce is not primarily a legal event. Maclean and Eekelar found in Lawyers and Mediators: The Brave New World of Services for Separating Families (Hart Publishing, 2016) that solicitors have to deal with many problems that are not family law. They are expected to be lawyer, friend, social worker, therapist and so on. The backdrop of a justice system drives clients to want legal advice, whereas in practice their needs go way beyond matters purely legal. The Resolution manifesto for the family justice system includes the need to help parents understand their responsibilities when they separate - hardly a legal issue. Professor Jan Walker says in 'What's in a Name? Reflections on the messages from family justice research for mediation practice' at p 000 below that research shows that clients want:
- clear, comprehensive information and advice on number of topics, including what options they have and who might help;
- to sort out 'the mess'/make arrangements for the future;
- to restore some sense of normality;
- to move from uncertainty to certainty;
- recognition of the emotions they are experiencing;
- to deal with/acknowledge the hurts and recriminations;
- to understand what is happening to them and the decisions they have to take;
- to feel safe;
- someone to 'hold their hand' on occasion and 'tell' them what to do for the best;
- legal information and (legal) advice and guidance.
A goal of providing better 'access to justice' misses the wider need of the separating couple at a time of family breakdown and may well exacerbate some of their problems.
The needs of the children
There is overwhelming research to show that parental conflict is harmful to children. Professor Jan Walker says (see above) that research indicates that two aspects of the parental relationship are particularly important for children's outcomes when parents separate:
- the interaction between the parents around their own relationship with each other; and
- the ways in which the parents work together as a parental team.
If both are positive, positive benefits accrue for the children. Dr Stephen Adams-Langley, senior clinical consultant at the children's charity Place2Be states that:
- children read the body language of their parents and are affected by the emotional atmosphere;
- the key message for parents is that they have to put more effort into the love they have for their children, than into the animosity they may have for each other.
If we are serious about protecting children, then we need to look very closely at the impact of the current system on children of separating families. We may not have the actual voice of the child in every mediation or every court case but we have do have a wealth of research which can speak for them. We know that it is in their interests for their parents to manage a good post-separation relationship. Parents have an important job to do which continues after they separate. The current culture where the instinct is to call a solicitor first is far from child-focussed.
- First, the solicitor acts for the parents not the children. In a standard private family case, theparties are represented but the children are not.
- There is no protection for children against a solicitor exacerbating conflict between the parents. Resolution has a newly revised and excellent code of conduct and a huge amount of work is done by them in promoting collaborative and child - focussed practice in family cases. But it is a voluntary organisation. Children remain vulnerable to the conduct of solicitors who fuel conflict in the parenting relationship, under the guise of their professional duty to get the 'best' outcome for one parent against the other parent.
- Solicitors are legal experts who are not specifically trained in conflict resolution and parenting issues. Many work hard at promoting good outcomes for the whole family, but by definition their attempts are limited through only seeing one client, and hearing only one part of the family story. In order to address conflict issues and provide support to rebuild a successful shared parenting relationship, a family professional is needed who works with both clients.
A quick look at the testimonials of a few 'successful' family solicitors speaks of the absence of child - focus in the way they promote their approach to family cases:
'A brave and persistent fighter for his clients. Won't leave a stone unturned in making sure that his client gets a good deal. Famously fights his client's corner to the final bell. A tough litigator. Relishes the difficult cases and get results. Represents each client with dogged de termination. Indomitable and shrewd – you want her in your corner.'
Chambers and Legal 500 appear to suggest these are commendable qualities in a family lawyer. If we are to take the welfare principle seriously, then any family professional – mediator, solicitor, Cafcass, barrister or judge – should ask these two simple questions at the conclusion of a case, when we are closing our file: 'In what state are we leaving the parenting relationship?' 'Will they be able to communicate, going forwards?'
Everything we are about in mediation is to reduce conflict and support the couple to find solutions so they can manage the future together as parents. Whether we're dealing with divorce, finances or children issues it is always about diffusing conflict between mum and dad. But why would a client choose this difficult and brave route if there is the lure of 'justice' on offer and the system upholds a fight-response? Is it not easier to pass the problem to someone else to resolve (a solicitor or a court) rather than face the difficult conversation oneself? Anthony Douglas of Cafcass speaks of the need for 'courageous conversations' for families.
The 'Mapping Pathways to Justice' research was illuminating in many ways. It would be interesting to ask the questions of a different client group – the children – over an extended period. How do children experience childhood differently, according to the various pathways taken by their parents in the family justice system? If we are to put children's welfare first then the whole system that deals with family breakdown needs to be one which supports parents to make the difficult shift from parents who live together, to parents who live apart and have a successful parenting relationship. Everything is pointing away from the formal justice route for the majority and into a solutions-focussed system. Society has changed but mostly our understanding of children and their needs has changed.
A family solutions system
We cannot re-work the old adversarial system. Sir David Norgrove and many others have said this. We need a radical re-think, for no reason other than that is what the welfare principle requires. It is not acceptable to have a system which propels parents into adversity. At present, the overriding principles of the Family Procedure Rules are directed at efficiency and effective use of courts, rather than the health of separating families or the welfare of any children. Professor Neil Robinson proposes a whole new structure. Instead of a family justice system, which puts justice at the centre and has various legal processes like mediation/collaborative law as offshoots from it, let us think instead of a 'family solutions system' from which justice can be an offshoot for the minority who need it. HHJ Martin Dancey also advocates a move from a 'justice' system to a 'solutions' system.
In a family solutions system, mediators would continue to work alongside other professionals, as we do now. The few that need justice can be diverted into a justice process, but the majority would be dealt with by professionals that help them find their solutions – with access to legal support, finance and housing information, parenting programmes, the voice of the child and so on. But, primarily, there would be an expectation upon parents to work things out. It would make sense to take this out of the purview of the Ministry of Justice. Family breakdown is not primarily a justice issue and should not be treated as such. We need a new Children and Families Department – or at least a relocation within Health and Social Care. Professor Robinson (above) makes an analogy with the way mental health fits within the Department of Health and yet has a Tribunal process for appeals.
It may take a generation to change the way in which we 'do' divorce but if we start now, the culture will gradually change. We can at least hope that our children's generation will approach it differently. We need an end to the boxing ring culture and instead must support families in the courageous conversations that are needed when a relationship breaks down.
Solicitor and Mediator, Wells Family Mediation
Written on 18th July 2019