2022 | Year in Review | The rise of civilised separations

“There can be no keener revelation of a society’s soul than the way in which it treats its children.” 

Nelson Mandela’s words were brought to life in March 2022 as the Family Solutions Group (FSG) - set up in 2020 to look at how family separation impacts on children - urged the government to help thousands of children whose mental health is put at risk when families separate, because their parents are left to “square up” rather than “sit down” and seek an amicable solution.

At the event the President of the Family Division, Sir Andrew Macfarlane, endorsed the report as a “blueprint for radical change”.

The end of the blame game

In April 2022, the introduction of “no fault” divorce heralded the potential for a new era of civilised separations, in which parents are no longer pitted against each other from the beginning.  The process is simpler, if not quicker, with more accessible language.

However, we need to build on that long-overdue reform and address the way divorce and separation impacts the entire family, not just the parents.

The current system leaves too many families with nowhere to turn for help other than the family court, which is adversarial in nature and already in crisis, overwhelmed by backlogs and families left to represent themselves following cuts to legal aid.  While the court is vital for cases involving domestic abuse and child safety issues, it is a blunt (and often destructive) instrument for most parents, who instead need a tailored family solutions system, as proposed by the Family Solutions Group.

Let’s get creative

Family law professionals have already begun adapting and innovating, finding new ways to support clients through the separation process.  Private FDR hearings are now commonplace and arbitration for both finance and children cases continues to grow in popularity, offering both privacy and the benefit of a binding outcome.

In May 2022, the TL4 Future of Family Practice DR Conference highlighted the need for practitioners to breakdown silos and collaborate with other professionals, such as financial advisers and therapists.

We have seen growing demand from clients for a bespoke wrap-around “separation support service”.  New ways of working, including “one couple / one lawyer” models, such as Resolution Together, are attractive to the majority of couples who want to move forward in a fair, respectful and cost-efficient way.

MIAMs makeover

The government mediation voucher scheme, extended earlier this year to March 2023, has proved successful so far with around two-thirds of cases reaching full or partial agreements away from court.

However, despite the best of intentions, Mediation Information and Assessment Meetings (MIAMs) have clearly not been effective in steering families away from court and instead are regarded by many as an inconvenient obstacle.  New standards introduced in October 2022 mean that MIAMs should now last a full hour, provide clients with consistent messages about alternatives to court and offer the time and space for them to consider the best way forward for their family. 

Mind your language

Following on from the FSG “What about me?” report, the President of the Family Division commissioned a further report into the language for separating families. This report, “Language Matters” has distilled feedback from a range of consultees and existing literature into five core principles for language change, to shift mindsets away from adversity and battles, towards safety, wellbeing and child welfare.

The five “P”s are: - 
 

• Plain English – avoid legal jargon and use words which can be easily understood.
• Personal – use family names rather than legal labels.
• Proportionate – use language which is proportionate to the family issues being considered.
• Problem-solving – use constructive language rather than battle language. The move from combative to cooperative language reflects a move from the language of parental rights to the language of parental responsibility, so issues can be approached in a child-focused way.
• Positive futures – the emphasis is not on past recriminations but on building positive futures in which children can thrive.

There is a call for language change throughout the Family Court: in court forms, case headings, the Family Procedure Rules, and in the language used by (and about) legal professionals at all levels (including in legal directories).

The Family Court needs to lead the charge, so that these principles begin to permeate into the rest of society, for example to schools, health professionals, charities and the media.

The “Family Justice System” itself is a misleading illusion.  First, there is no promise of “justice” following separation.

Instead the Family Court only provides a “just” process for resolving issues.  Second, there is no systemic approach to family separation, only legal services which operate in the shadow of the Family Court.  No one designing a family separation system from scratch would start with a court room.  No one designing that system would leave responsibility for the children of separating families falling between the cracks of thirteen different government departments, none of whom will now step up.

The obvious elephant in the room is funding.  How can any system-wide reform be paid for?  Well, research shows that:

• 280,000 children each year are caught in the middle with evidence linking parental conflict to life-changing harm, including to child brain development; and
• The current lack of government policy around family separation is costing the British tax payer an estimated £51 billion each year (up from £37 billion in just 10 years).

As more children grow up with parents in conflict, and more parents suffer from hostile separations, we have another public health crisis on the horizon. Research predicts poor outcomes for these children, which stretch into adulthood, including mental ill health, relationship difficulties, substance abuse and criminality.

The rise of civilised separations offers these children better prospects for school, employment and future relationships; and our wider society will benefit from costs savings, including across the education system, the health and social care system and the justice system – across all those government departments currently not taking responsibility for this issue.

A language of wellbeing and cooperation, instead of law and justice, could open up wider government responsibility for separating families.  It could encourage a positive shift from the limited concept of “Family Justice” towards an integrated and coordinated response which has safety and child welfare at its core. 

Momentum is building

Siobhan Baillie MP secured a debate in Westminster Hall on terminology in Family Law in November 2022, the Family Procedure Rules Committee is considering what changes can and should be made to the FPR in response to the language report, and the family law community is being encouraged to join the conversation.

2023 brings with it the hope that changed language will change mindsets and lay the foundations for improved systems of support for separating families.

Learn more about FSG's Language Matters paper here.

This article was first published in ThoughtLeaders4 HNW Divorce Issue 11 (December 2022).

Further Information

If you have any questions about the issues raised in this or other blogs in this series, please contact Lauren Evans or a member of our family and divorce team

 

About the Author

Lauren Evans is a senior associate in the family team with experience of all types of private family work relating to both children and finances.  Lauren is also a mediator and helps clients to work through the practical and legal issues arising from family relationship breakdown.