Avoid courts to lessen the pain
of family break-ups

First published in The Times

12 November 2020

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. 
 
Vast numbers of parents are turning to the family court with disagreements about their children resulting in the system being stretched beyond limit. 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 Family Solutions Group was set up in January by Mr Justice Cobb as a multi-disciplinary sub-group of the Private Law Working Group, 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 children disputes flow from unresolved emotions caused by the circumstances of relationship breakdown. These are relationship issues rather than legal matters.

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, often continuing for many years after any legal process ends. In the vast majority of cases, children have no voice in the process.  

Today’s report suggests some solutions. It calls on the government to establish a family minister to co-ordinate policy and provision for separating families, beyond the administration of justice provided by the Ministry of Justice.  

It advocates a public education campaign to reframe our cultural response to family breakdown away from an adversarial legal environment towards a child-centred and relational approach.  Too many parents who separate on difficult terms expect to fight over their competing ‘rights’, rather than cooperate over their shared ‘responsibilities’.  

And the report recommends a range of other reforms, including improved information and support for children, with those deemed to be of appropriate age being consulted on the 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, which would direct them away from court and promote a long-term parenting relationship. 

This is not easy for many parents at a difficult time of separation.  Hence the further recommendation that parents access a holistic range of support from therapists and mediators alongside legal services to help them resolve issues together, rather than work against each other.

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

The report’s recommendations also call for the code of conduct of the family law organisation Resolution to be universally applied by all legal practitioners, who should be held to account for their approach.

All lawyers must acknowledge the impact our conduct has on separating families.  As we close our file at the end of a case, how often do lawyers 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 provide better results for families who separate. 

This article was first published in The Times on 12 November 2020 and was co-authored with Helen Adam, a mediator and former solicitor at Kent firm Wells Family Mediation, who chaired the Family Solutions Group that produced today’s report. Charlotte Bradley, Head of Family Law at Kingsley Napley, was a member of the group.

Find out more


About the report
The report “”What about me?” Reframing Support for Families following Parental Separation” was published on 12 November 2020 by The Family Solutions group (FSG), a subgroup of The Private Law Working Group. The report focuses on improving the experiences of separating families before any application to court is made. It recognises that many parental disagreements about children following separation are not legal disputes and require other non-court approaches, focusing primarily on the needs of the child.

Webinar on 18 November 2020
Members of the FSG are hosting a webinar on 18 November 2020, from 6-7pm, where they will be highlighting their recommendations and it will also be an opportunity to address the panel through a Q&A session to initiate a discussion around the recommendations and the way forward.

The webinar is free to attend and anyone interested can register HERE.

Pre-registration is required and is subject to capacity.

Please contact us at events@kingsleynapley.co.uk for further information.

About the authors

  • Charlotte Bradley is Head of the Family and Divorce team at Kingsley Napley, where she has been a partner since 2001. Charlotte specialises in all aspects of family law, particularly international issues, both in relation to finance and children. She has a reputation for cross border jurisdiction issues, particularly European and Relocation cases, and for acting for unmarried parents in Schedule 1 (financial provision) cases. Charlotte is also an accredited mediator and member of the Family Solutions Group.
  • Helen Adam is a senior mediator (having previously been in practice as a solicitor) and one of the founding partners of Wells Family Mediation. She is the mediator representative on the Private Law Working Group, which is examining how family law disputes are currently resolved in England and Wales, and how that might be improved.  In 2020 Helen was invited to become Chair of the Family Solutions Group (a sub-group of the PrLWG), which published the report ”What about me?” -Reframing Support for Families following Parental Separation.

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