The Family Solutions Group
The Family Solutions Group is a sub-group of the Private Law Working Group. It is a multi-disciplinary group with broad and deep expertise in working with separated families in and out of court. We have been tasked with bringing fresh and focused attention to improving the experiences of separating families away from the Family Court where it is safe to do so.
Every year, around 280,000 children see their parents separate in the UK. How those separations are handled will affect the rest of their lives. The current system is failing many children and their parents, and this affects society as a whole. The financial cost to the tax payer of family failure is now £51bn up from £37bn pa 10 years ago.
When parents separate, the reflex action for many is to frame parenting disagreements as legal disputes. If you have a toothache you go to the dentist; if you have an issue following separation you go to court. Too many parents who separate on difficult terms expect to fight over their competing ‘rights’, rather than cooperate over their shared ‘responsibilities’.
Family breakdown is painful. When people are anxious and / or angry they are extremely vulnerable to manipulation. They need support and an approach that focusses their energy into putting their children above their own hurt feelings; an approach that steers them away from the courts.
We need to shift what are seen as ‘custody battles’ into long term goals of cooperative parenting. Unless there are safety concerns a child should be able to enjoy a close and loving relationship with both parents; one parent does not have the right to stop or sabotage that.
A ‘justice system’ response to parenting disagreements is a blunt instrument for a family going through family breakdown. If all you have is a hammer everything looks like a nail. Some families need the protection of the family court, but many do not. Disagreements about children may be symptoms of unresolved emotions following relationship breakdown, and yet relational issues are not addressed in a system designed to administer justice. In practice, the adversarial nature of a justice system may only add fuel to the fire, increasing stress and conflict within the family.
Many issues currently being taken to court are not legal disputes; in fact the traditional legal response is unhelpful maybe even harmful for many families. The system is designed to focus on the differences between parents not what they have in common. Sir Andrew McFarlane President of the Family Division has said “court is not the right setting for many. It provides a pitch and a referee for parents to play out further rounds in their adult contest”.
We know that conflict can be highly addictive. Some parents are frequent returners to court relying on the state as a third parent. The courts’ precious resources should not be used to determine which platform at Clapham Junction (T v S) or which junction on the M4 (Re B) a child is handed from one parent to another. These children deserve better.
Things have to change. As a society, we must protect children and restore their needs and rights as central in any disagreement between parents.
Key recommendations from our report:
- A policy response. There are thirteen separate government departments responsible for families, children and family breakdown. We are proposing a more coordinated, joined-up approach across government departments to tackle the financial and human cost of family breakdown.
- Change the cultural response to separation. Separating parents need to be steered away from acrimonious court proceedings. We are recommending a campaign of public information and education with the aim of achieving a permanent shift in cultural attitudes. For example attendance at a kite-marked Parenting Programme should become the norm as it is in other jurisdictions.
- Put the rights and needs of children at the centre of any parental separation. All the evidence points to the detrimental effect of acrimonious court proceedings on children, often for many years to come. Research is clear that psychological harm caused by parental conflict impacts children’s long-term mental health and future life chances. Children become silent victims as their voices are drowned out in the adult conflict and childhoods are lived against a backdrop of parental conflict, often continuing for years after any legal process is completed. We propose a presumption that children age 10 and above should have the opportunity to have their voices heard.
- Steer some parents to the ‘safety pathway’. There is no doubt that some families need assistance from the family courts: for example where abuse is alleged or there is the potential for harm (perhaps because of addiction or severe mental health issues). We estimate that 20-24% of families fall into these categories and in such cases safety must be prioritised above all else. We are recommending that such cases are identified early and directed onto what we have called the ‘safety pathway’. This will give them accessible and affordable support, and access to representation in court where needed.
- Steer others to the ‘cooperative parenting pathway’. For the remainder, we need to reframe the conversation so that a legal response is not the default option. In the absence of safety concerns, the goal must be to support parents to resolve issues in a child-focused way themselves. These families require a ‘cooperative parenting pathway’, which presumes that parental involvement, almost always in the form of contact with both parents, is beneficial to a child. Separation can be a distressing process, and we cannot ignore the hurt and often anger that some parents feel at this time. However, we are calling for a system which holistically assesses the needs of families and offers clear routes to integrated support and therapeutic services, funded (where financially eligible), and in which the voices of children are central. This will require better coordination of support both locally and nationally. Ultimately, parents and their children deserve a more humane response to relationship breakdown.
- Family law professionals and the interface with the family court. There must be a greater understanding within the legal profession about the effects of parental conflict on children and relationship dynamics generally; mandatory core training is proposed. Notwithstanding an increasingly sophisticated range of non-court resolution processes parents and their lawyers continue to cling to the court. The court must now discharge its duties under Part 3 of the Family Procedure Rules. A proposed new Part 3 Protocol with ‘teeth’ will assist the court to encourage and facilitate out of court processes by ordering a case into an out of court process and in some cases refusing to hear the matter. Further sanctions would include costs orders against parties and their lawyers for unreasonably refusing to consider or engage in an out of court process such as mediation.
To view the full report by The Family Solutions Group (subgroup of The Private Law Working Group (PrLWG), please see “What about me?” – Reframing Support for Families following Parental Separation. Karen Barham is a member of the Family Solutions subgroup of the PrLWG.