No-fault divorce: a better way to divorce

Too many family cases going to court, says President

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James Harbottle
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Too many family cases going to court, says President

Ian Walker Director/Solicitor/Mediator /Arbitrator Law Society Children Panel and Mediation Accredited
Ian Walker Director/Solicitor/Mediator /Arbitrator Law Society Children Panel and Mediation Accredited

Last week the President of the Family Division Sir Andrew McFarlane made a rare appearance on BBC radio, speaking about the work of the family courts.

The interview with Radio 4’s Broadcasting House programme included a number of points that should be of interest to anyone using, or contemplating using, the courts to resolve their family dispute.

Court should be last resort

One of the first points that Sir Andrew made was that some of the separating couples going to court, particularly to discuss the future of their children, would be better off not going to court.

He said that for many couples court is the first port of call to resolve their dispute, when it should actually be the last resort, except where there are issues of domestic abuse or protection or safeguarding.

Sir Andrew estimated that about 20% of families who go to court to have a dispute about their children resolved would be better served by at least first of all trying to sort out the dispute in other ways. Although he didn’t mention it, mediation was clearly in his mind as one of those other ways to sort out the dispute.

Sir Andrew said that many parents see such disputes as a legal issue, when in fact they are not. They are relationship problems – the law merely provides the structure that will resolve the dispute and impose a resolution upon the parents, if needed.

Sir Andrew pointed out that both parents usually have parental responsibility for their children, and part of that responsibility is to sort out problems when they occur.

Hostile languageToo many family cases going to court, says President

Sir Andrew agreed that the language used in court proceedings, and the adversarial system, is ‘weaponising’ the things that led the parents to separate.

He gave examples of this language, including the use of the term ‘custody’ still being used despite it disappearing from the law thirty years ago, with people still talking about a ‘custody battle’ or a ‘custody fight’.

Other examples of such hostile language include still referring to cases in an adversarial way, such as ‘Smith against Smith’, barristers still referring to their ‘opponent’, and use of the term ‘dispute resolution’, rather than ‘problem solving’.

Clearly, this type of language can add to the animosity between the parties, making it less likely that the dispute will be resolved amicably.

Harming childrenChildren cases taking longer than at any time since current records began

Inevitably, parents fighting out their disputes in court will have an impact upon the children concerned.

Sir Andrew stated that research consistently shows that if you’re the child of parents who are at odds with each other that is unhealthy, and to have a dispute that runs on in the courts is highly likely to harm the child.

Sir Andrew thinks parents are fooling themselves if they say they are not involving the children, or that the children don’t know – he said that if you’re living in a household, even if nobody says anything to you, or you’re not in the room, you know that it’s unhappy.

Sir Andrew explained that new ways of working are being piloted, and part of that is that early on a social worker will file a ‘child impact assessment’, with the idea of providing a wake-up call to the parents as to the impact of what they are doing on their child.

Fully stretched

Sir Andrew was asked whether the family justice system was in crisis, with the numbers of parents making applications being unmanageable, and family courts being stretched beyond limits.

Whilst shying away from using the word ‘crisis’, Sir Andrew agreed that resources were ‘fully stretched’, and that courts were unable to get to cases in a timely way, with delay itself obviously not helping those families involved.

Even more reason for parents to keep their disputes out of court.


Too opaqueSolicitors in Exeter with client

Lastly, Sir Andrew was asked whether the procedures of the Family Division were too opaque, a criticism that has often been made in recent times, with many accusing the courts of operating a system of secret and unaccountable justice.

Sir Andrew replied by saying that he thought that what the family court does on behalf of society was very important, and that society generally needed to know more about what the court does.

He is therefore working upon a plan to clarify what journalists can report about family court proceedings. In short terms, journalists would be able to come into court and be able to report what they see and hear, without naming any of the people involved, thereby shedding a light on what the courts do, but not who they are working with.