Tag Archives: contact

Time for Climate Change in the Family Justice System

The Family Justice Council held its annual Bridget Lindley Memorial Lecture and conference in Bristol on April 6th 2022. Helen Adam gave the keynote address. She is a mediator and Chair of the Family Solutions Working Group who published in October 2020 ‘What about Me? Reframing Support for Families following Parental Separation, capturing a range of interventions for separating parents in one coherent document, in recognition that many cases would be better served outside the court arena. Helen expanded on that theme in her presentation – ‘Time for Climate Change in the Family Justice System’.

She set out her vision for a more humane system that supports families. She recognised that for most, ‘conscious uncoupling’ is unrealistic and the law can’t make people discard emotions. Helen drew a comparison between the Family Justice System and the climate change movement, where there were similar tensions between long established systems and a growing body of evidence that challenges these systems. The message is simple – we cannot go on as we are – but it is also unwelcome as changes will be hard and cost money. But evidence is real and growing that the adversarial system is harmful and is has become impossible to ignore

The Ministry of Justice Risk of Harm Report in June 2020 found that adversarial process often worsened conflict between parents and had damaging impacts on victims of abuse and children. Under conditions of extreme stress even ordinarily robust people can project intense emotions and feel the the other side to be malicious, even dangerous. Family separation is always stressful for children but what drives long term negative impacts is the level of conflict witnessed before, during and after. Reducing parenting conflict is associated with long term positive outcomes.

Ultimately this is harmful to all society and we need a different, gentler, more humane approach. But the problem seems too huge and difficult to overcome and we end up in state of depressed helplessness. Helen identified possible solutions

political support that crosses party lines and co-ordination.
public education programme to correct wrong language and wrong attitudes which are outdated.
authoritative website – a go to place with clear information for parents and children.
Resourcing ‘touchpoints’ – GPs, schools – to provide information and signposting about separation
direct support for children – voice of child is key component, but giving a child a ‘right’ to be heard doesn’t help if it can’t be exercised.
Mediation – but this needs triaging as some cases involving abuse just aren’t suitable.

Helen considers that a real benefit of mediation is in allowing a person to explain their situation, gather information about options and have an opportunity to ‘reframe’ family separation and see though the lens of the future. There are many resources out there, such as the Separated Parents Information Plan, but we need a national body of such programmes that meet high standards.

Lawyers have vital role to play in a ‘precourt’ space but parental separation is not primarily a legal issue, as it encompasses issues of safety, emotional states, child consultation, parenting and financial considerations. Parents need models that are supportive and problem solving and judges need training about issues that go beyond law. Without co-ordination what we have currently is just a ‘hotch potch’. But no change can be brought into effect without political intervention.

Language is critical part of any reframing. Helen queried the use of ‘Family Justice System’ – If that is what is said on the tin, that is what people expect, to play out rights and wrongs, to ‘win’ or to exact retribution. David Norgrove said our system is about ‘least worst outcomes’. If we renamed the FJS as ‘least worst outcome system’ would so many people want to go through it? If we don’t want families to go to war, we need to offer them something else.

Family law is completely different to all other forms of law which is retrospective, correcting past wrongs. We should be forward looking and wanting best outcomes, not just one parent’s concept of justice. Kate Stanley explained that where a system exists with a power dynamic, everyone embraces the language of the most powerful. Change has to come from the top – judges, magistrates and lawyers. We need the paradigm shift that the climate change movement has seen. We are 30 years on from the Children Act. Are we leaving green footprint in lives of families we work with? How is our work impacting families?

Then Ellen Lefley of JUSTICE spoke about improving access to justice for Separting/ed Parents – the full report is due out in July 2022. Access to justice needs understanding as broad concept, about just procedures and just outcomes. There are many barriers to access to justice – institutional, physical, mental, financial. For private family law, its not about increasing access to courts but to the most appropriate resources to resolve problems. The financial vulnerabilities of parents in such cases often means they can’t pay for more creative solutions. We have to ask – what is going on? What intervention is most suitable? How will they access it? Other jurisdictions show that the family court can be at forefront of initial non adversarial triage system which can have encouraging outcomes – less delay, people weren’t trying and failing. However, high conflict situations were better off going straight to court. This triage resulted in higher settlements and lower rates of return to court.

Then we heard about recent research regarding ‘Profile of parents within the Family Court’ from Dr Linda Cusworth and Jude Eyre, Associate Director of the Nuffield Family Justice Observatory. The research indicated the heightened vulnerability of adults in private law proceedings in the year preceding the court action, i.e. it was not going to court that initiated the problems. Parents in private law proceedings had higher rates of mental health distress, including anxiety and depression when compared to the general population. There were higher rates of self harm and exposure to domestic abuse as either victim or perpetrator.

What does this mean? And what can we do next? The research confirms domestic abuse is a mainstream not minority issue for the FJS. We need to think of the ‘mental model’ of the person for whom we are designing systems. whatever we do, in or out of court, these circumstances of vulnerability are present and real. All services need to be alive and actively screening and thinking about routes though. If parents are vulnerable rather than vexed, how do we engage to minimise anxiety? How can we bring learning about power dynamics into the court hearing? Can we address information gaps for litigants? How can we widen range of services the court can signpost to? Much lies beyond court and legal responsibilities, we need to look outwards to local safeguarding partnerships, clinical commissioning groups and third sector with rich experience.

We then heard about the experiences of parents and children in the FJS. One parent had benefitted from mediation but another could not, because of safety issues. She made a very strong point that she and her children needed the protection of the family court, which had ‘saved her life’. The voices of children have been gathered together ‘In Our Shoes’ – contact [email protected] to get free copy, the President confirming that this should be compulsory reading for everyone in the system.

Some comments

It’s impossible to disagree with anything that was said by the speakers. The adversarial system is clearly the last place any stressed and anxious parents need to be. Cases that drag on for years – as many do – are clearly going to cause children life long emotional damage. We can all see how easily and quickly situations become polarised and how the children suffer the most when caught in the middle.

All the speakers appeared to have arrived at the same solution – we must identify better solutions for families than simply funnelling them through an adversarial system which appears to achieve little and does it very slowly. But equally, all noted that the barriers to such triage are significant. To be blunt, there is often very little on offer or it requires significant financial resources to obtain. The money wasted on a bloated adversarial court system could be redirected to provide more focused and effective interventions – but it’s going to require a political will and co-ordination that I frankly do not think I will see in my lifetime. The Children Act 1989 was the last great piece of legislation to reform a fragmented system within 30 years, that crossed political lines and united everyone.

We may now have reached a similar crisis point but the political landscape now appears to be have shifted; politicians work with sound bites, quick fixes and policies that will play well with the electorate. Reforming the FJS isn’t ‘sexy’ – but it is essential.

But what is also essential is recognising the powerful statement of the women who said the family courts saved her life. The elephant in the room is the 10% of estimated cases that will be impervious to mediation, support or ‘re-framing’ – those cases which involve men and women who are truly damaged and dangerous and who require a robust court structure to minimise the harm they do. I welcome the proposals for more effective triage – just so long as we do retain the option for judicial control over those cases which need it.

Address by McFarlane LJ to Families Need Fathers

On 25th June McFarlane LJ addressed the national conference of Families need Fathers. You can read the press release here or the full text of the speech here.

This is a post by Sarah Phillimore. I am grateful for and agree with entirely his comments about the need for open dialogue and engagement with a variety of perspectives. He is also entirely right about the need for early fact findings. But I will remain politely sceptical about the ability of any suggestions for reform to make much headway if we fail to grapple with the underlying and serious difficulties that get in the way of resolving parental disputes about children; lack of judicial continuity, lack of legal aid and lack of consistent enforcement of court orders. Underpinnning all of these however, I will continue to maintain is the refusal to accept that courts are inevitably the wrong kind of arena to try and repair a fractured family.

We need to talk

McFarlane LJ began by acknowledging the respect that senior member of the judiciary hold for FnF and the need for dialogue. He recalled his days as part of the legal team working on the Norgrove review into family justice and the recommendations that produced to improve private law disputes:

to ‘make parental responsibility work’ by enabling parents to reach agreements, while ensuring that the child’s welfare remains paramount. We recommended the replacement of the pejorative labels of ‘residence’ and ‘contact’ with ‘child arrangement orders’. We recommended that there should be ‘a coherent process of dispute resolution’ starting with an online information hub to help couples resolve issues, moving mediation, MIAMS, SIPS and then, if necessary, to a tightly controlled court based resolution process conducted by the same judge throughout.

McFarlane LJ recognised that he has been far removed from the ‘coal face’ for some time now and will carry out over the next year vists and consultations at different courts with different groups to gain a proper understanding of the impact of those reforms, recognising of course that the removal of legal aid from many of these cases has brought its own problems.

I will comment here that it is surprising to find ‘contact’ and ‘residence’ labelled ‘pejorative’ although I accept they did tend to support an unhelpful ‘winner takes all’ attitude. Nevertheless, they are 100% less cumbersome and more easy to explain to a parent than a ‘child arrangements order’. However, there is no need for me to worry about nomenclature as it is clear that the media will never move beyond ‘custody’ and ‘visitation’.

The rather larger problem however is just how well on the ground translate such lofty ambitions as ‘making parental responsibility work’ and providing a ‘coherent scheme’ of dispute resolution. I suspect most lawyers and parents participating in the system would say ‘not very well at all’. The reasons for this are many and various and I will look at some in this post.

His address focused on three issues: Domestic abuse, alienation and possible future developments.

Domestic Abuse

McFarlane LJ recommended that all those present read research published by Women’s Aid in May 2018 entitled “What about my right not to be abused? Domestic abuse, Human Rights and the Family Courts.” He accepted that this report had limitations; nonetheless it was an important piece of work, representing ‘the other side of the coin’ to the arguments sometimes made by or on behalf of fathers about the inherent bias in favour of women in the family justice system (an assertion which I just don’t think is true and have discussed at greater length in this post – Is the Family Court system biased against men?)

I agree it is vital for both sides of the debate to be heard; neither side has the monopoly on facts or truth and both perspectives need airing. I strongly suspect ‘the truth’ will be found more in the middle than at either side of the spectrum and bold assertions about male violence or female manipulation.

Alienation

McFarlane LJ rejected a pre-occupation with agreeing a label for bad behaviour by parents. Rathe than debating if ‘alienation’ was the right label or a ‘proper’ mental health condition it made more sense to focus on the particular behaviour in question. He referred to the attitude taken towards Fictitious Induced Illness, which should be adopted for ‘alienation’.

If that behaviour was found to be abusive then action was taken, irrespective of whether or not a diagnosis of a particular personality or mental health condition in the parent could be made.

He accepted that ‘parental alienation’ was certainly ‘a thing’- and I agree:

I readily accept that in some cases a parent can, either deliberately or inadvertently, turn the mind of their child against the other parent so that the child holds a wholly negative view of that other parent where such a negative view cannot be justified by reason of any past behaviour or any aspect of the parent-child relationship. Further, where that state of affairs has come to pass, it is likely to be emotionally harmful for the child to grow up in circumstances which maintain an unjustified and wholly negative view of the absent parent.

Where do we go from here?

I was intrigued to see the comment about the importance of findings of fact.

It is, as I have already observed crucial, both to the interests of the alleged victim and, in fact, to those of the alleged perpetrator, for any significant allegations of domestic abuse to be investigated and determined as matters of fact, similarly any significant allegation of“alienation,” should also be laid out before the court and, if possible, determined on the same basis.

Anecdote from other practitioners and my own experiences, suggest that findings of fact are something the courts now try to avoid, which simply shunts the problem further down the line. If parents are utterly divided about the truth or otherwise of some really serious allegations then it is imperative that the ‘facts’ – in so far as they can ever be determined – are found. This is one of the key suggestions I make for attempting to avoid cases of implacable hostility bedding down over years.

My own recent experience is of yet another case where allegations were first raised in 2013 about issues starting in 2011. Two successive CAFCASS officers raised need for fact finding – no court ever ordered it. The case fizzled out in 2018 with no orders for contact and a child who had not seen his father since 2013. This is sadly not an unusual scenario, at least in my own experience.

He also suggests more thought about an ‘Early Intervention’ Strategy

At the core of the EI approach is the need to manage the expectations of parents as to the post-separation arrangements for their child from the earliest point. Key to this approach is the issuing of general guidance on what a court would regard a reasonable amount or pattern of contact to be (in cases where there is no safeguarding risk to the child); to be of weight, such guidance can only come from the judiciary.

EDIT – ‘the new normal’

The Transparency Project commented today about ‘the new normal’ suggested by McFarlane LJ, i.e. investigating possible judicial guidance on what is a ‘normal’ range of contact whilst outcomes are decided. This is an interesting point on which I should have commented.

The Transparency Project say:

This guidance, if agreed, could apparently take the form of ‘standing temporary orders’ which would aim to maintain reasonable amounts of safe contact while issues were being resolved. Such an idea will no doubt raise many questions about the individuality of cases and the welfare of each child, so it sounds like a very useful exercise to consult widely across these topics. If the lower courts are reluctant to follow PD12J and make findings – why is this? And what are the potential effects of new Cafcass guidance sending its practitioners down ‘abuse’ or ‘alienation’ ‘pathways’ before any determination of the facts has been made by a court.

I welcome any initiative to promote more consistent and coherent decision making in the family courts, so that parents can have a better idea of likely outcomes. However, it will be very interesting to see the results of consultation about this because certainly at first blush it appears to offend against the other important consideration – of early decisions about the actual FACTS in each case, to inform a welfare decision about what is best for each individual child. If anyone can identify the ‘one size fits all’ – I would be interested to know what that is!

Conclusions

I am very pleased to learn that McFarlane LJ is to embark on a year long process of consultation and dialogue and his speech marks a welcome beginning. The commitment to talking, listening and understanding is self evident. He is right to press for both sides of the debate to listen to what each other is saying – for too long I have been complaining about the harmful and chilling impact of rhetoric and polarisation in this field. He is also right to recognise the key importance of early fact findings. However, and of course, there are many more issues that need to be addressed and some – possibly the most important ones – will require some financial investment and clout that will not come from simply talking about them. Three of the key issues, in my view, are lack of judicial continuity, lack of legal aid and lack of consistent and rigorous enforcement of orders. This three issues bleed into one another. All will need tackling.

But, at the heart of it all I go back to my now wearily familiar mantra. The family court cannot hope ever to solve the problems of family dysfunction. It isn’t the arena, it doesn’t have the tools and is unlikely to ever get them. The key solution – in my mind – is for better education at the earliest opportunity for our children. What makes a healthy relationship? What discussions and agreements should you be having with your partner before you decide to bring a new life into the world?

The suggestion that we could do more work on ‘early intervention’ would seem to be supporting my views here; expectations need to be managed at the earliest stage, rather than suggesting the family courts can work miracles and render the unreasonable parent reasonable. I would rather have commitment to rigorous and early education/discussion about healthy relationships but this will do for a start.