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public education programme to correct wrong language and wrong attitudes which are outdated.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.

Some comments

Further Reading