Keeping families out of court

Good for courts. And good for families

How often do you still hear people referring to “custody” and “access” when speaking about the children of separated parents? Television dramas seem to use these terms as frequently as the equally mythical courtroom gavels.

Perhaps you know that custody and access were replaced 30 years ago this week when the Children Act 1989

¹

came into force in England and Wales.

Ah yes, you recall, we now speak about “residence and contact orders”.

Wrong again. Those terms were dropped seven years ago when the Children Act was amended by the Children and Families Act 2014. Section 8 now uses the term “child arrangements order” to encompass all family court orders dealing with where children should live and when they should spend time with parents.

That was much more than a change of labels, the family judge Sir Andrew McFarlane said shortly afterwards. But there was little press or public interest and, as he feared, the policy reforms behind the change in terminology failed to get through to the “parents, grandparents, friends and other family members” who needed to understand them.

So McFarlane, who is now head of family justice, will make it a priority in what he expects will be his remaining three years as president of the High Court family division to improve the resolution of family conflict where the welfare of children is involved.

His blueprint is a report called What about me?, published last November by the family solutions group, a subgroup of McFarlane’s private law working group. As the report said:

It is critical to recognise that children are at risk of harm when parents separate. Family breakdown is a time of great vulnerability and research has consistently shown that unresolved parental conflict is harmful to children. Destructive inter-parental conflict affects children of all ages, across infancy, childhood, adolescence and even adulthood. The way in which parents communicate with each other impacts children’s long-term mental health and future life chances.

Some children and parents face the risk of immediate physical harm. In those cases, there may be an need for urgent intervention by the courts. But, said the report, the majority of separating parents need support of an entirely different kind:

• A framework and language that promotes child welfare and a cooperative parenting approach.

• Access to information and direct services for children.

• Mechanisms for the child’s voice to be heard at the time when decisions are being made which affect that child.

• Access to information and direct services for parents about how to parent following separation.

• A consideration of the emotional state of the parents and the impact this has on their parenting decisions.

• A multi-disciplinary response, involving therapists, parenting specialists, mediators and legal services.

The report recommended a public information campaign on child welfare, alongside the divorce reforms to be implemented next April.

Family hub pilots

What can be done in the meantime? In a speech last week, McFarlane disclosed that two pilot projects will be launched early next year in North Wales and Dorset. They will cover all family law disputes except for public law cases, such as care proceedings. Hearings will become less adversarial and parties will be encouraged to resolve their disputes outside court, using dispute resolution methods such as mediation.

Rather than treating the courts as their first port of call, people needing help will be be directed to a “family hub” of local support agencies:

Parents and children will be able to access a hub website providing information and signposting them to services in the hope they can avoid coming to court. For those that need it, access to a family professional will enable assessment of need and meaningful signposting. In more complex cases a multi-agency team would assess domestic abuse, substance misuse and mental health issues and help parents access services and, when needed, support application to the court for protective measures.

The two pilot schemes are expected to run for 18 months. If successful, they will be extended to the whole of England and Wales.

Domestic abuse

Allegations of domestic abuse feature in more than half the cases that come before the family courts. The Domestic Abuse Act 2021 was passed by parliament six months ago and defined domestic abuse to include controlling or coercive behaviour as well as physical or sexual abuse and violent or threatening behaviour. As McFarlane confirmed, reforms such as domestic abuse protection notices and special measures in family proceedings are expected to be in force from next April. Every family judge in the country will have to complete an additional one-day training course to ensure that they understand the traumatic nature of domestic abuse on victims.

Might a parent who makes allegations of domestic abuse be causing harm to a child by what is known as “parental alienation”? Courts have apparently been grappling with this problem by taking expert evidence. But — no doubt with the benefit of hindsight — McFarlane stressed the need for caution. In a memorandum published yesterday, he stressed that “pseudo-science, which is not based on any established body of knowledge, will be inadmissible in the Family Court”. An expert’s methodology had to be based on an established body of knowledge.

Conclusion

As McFarlane said,

the Family Court is not currently in a good place. The substantial backlog that existed before the pandemic has now grown very substantially. The volume of private law applications to the court continues to increase month-on-month on a seemingly endless trajectory.

Keeping families out of court is not only good for the courts. It’s good for the families too.

This analysis reached you free of charge. To make sure you never miss another post, join my free mailing list. To add comments and receive exclusive pieces, become a subscriber.

1. Lady Hale was the principal architect of this legislation and writes about it in her new memoir.