This week, Channel 4’s Dispatches looked inside the family courts’ system and parents’ experiences of the courts. It reported that of the people who responded to its survey:
- Over 2,000 parents said they felt the judge was actively hostile towards them.
- Among those whose cases had concluded, over 70% of both mothers and fathers were unhappy with the outcome.
- 67% agreed or strongly agreed that their children’s mental health had been affected by participation in the family court proceedings.
- Court proceedings were reported to have taken on average 18 months to complete, with 1 in 10 cases lasting more than 5 years. The average cost of proceedings was said to be around £13,000, though 1 in 20 claimed they had spent over £100,000.
In the programme there was reference to a ‘1960 law’, intended to protect children, which requires family proceedings to be held in private. This means that what happens in a family court can only be reported with the express permission of the judge, and it is an offence to do so without consent. Dispatches posed the question that, if no-one knows the specifics of what took place, how can problems be fixed?
It also reported on findings from its survey sent to legal professionals, who were asked how well judges understood domestic abuse and coercive control. Four out of the five lawyers who responded said magistrates have a poor or very poor understanding of these issues.
The court’s ability to deal with parental alienation was also deemed ineffective after a University of Cardiff review of research into orders made by family courts to remove children from one parent to the other, found that there are, “few to no high-quality evaluations of interventions… in relation to parental alienation.”
Sue Andrews, family partner, B P Collins comments on the report:
Although the conclusions made do not echo our family team’s experience or that of the majority of our clients, its findings do reinforce our advice that court proceedings should be a last resort for separating couples. They are a blunt instrument and can be clumsy, lengthy and costly. It is a process in need of improvement but this, in our view, has more to do with the lack of resources, rather than the fact that proceedings are conducted in private. There is also insufficient judicial time currently, which is the reason for the long delays, which are also found within CAFCASS (Children and Family Court Advisory Service).
In many cases involving a dispute with children, CAFCASS will be ordered to prepare a report. However the time allocated, and resources available to them, is too limited to comprehensively investigate and assess the family involved and get to grips with the issues and the inter family relationships. This means that the judges are having to make decisions, often with very limited independent reports from CAFCASS.
The programme suggested that the hearings should be more open, with the thought being that if accountable to a wider audience, this would prevent bad decisions. However, would couples really want their hearings being open so their friends, neighbours and the media could follow proceedings?
The programme also found that interventions relating to parental alienation are ineffective, adding that the University of Cardiff found that it was “very rare” for a parent to instil false beliefs about the other parent into a child. In our experience, alienation is often the result, not of deliberate steps taken by a parent, but rather through osmosis. For example, a child witnessing a parent frequently cry about the other parent having an affair or accidentally overhearing their parent talking disparagingly to their friends about their former partner.
The key to avoiding parental alienation lies, not surprisingly, with parents. Ideally, they would communicate directly and together with their children in an age-appropriate way about the breakdown of their relationship and be consistent with their messaging, ensuring that neither blames the other for the breakdown of the relationship.
This leads onto why it is so important that couples should aim to separate well. B P Collins’ family team has always advocated that couples should aim to achieve an amicable divorce. We have some practical advice on how to accomplish this. Better communication and respect of each other should prevent a couple from adopting extreme and polarised positions, and instead be able to see things from their former partners’ viewpoint too.
Focusing on your children’s welfare
If children are suffering, then consideration should be given to providing support for them early on, such as an appropriate counsellor who they can talk to openly and freely about how they feel. These discussions should enable them to better understand what has happened and to know that no-one is asking them to decide between their two parents.
Or family therapy could be considered, especially if the children are older. In such an environment, everyone should feel able to be open and frank. Airing issues openly is usually the first step to a satisfactory outcome for all, because it prevents misunderstanding and fear that can often creep in.
It’s also important to remember the need to be supportive of each other’s relationship (save, of course, where there are issues of abuse) with your children and to see your children regularly and consistently no matter how painful that might be at first or even for a few years. Such consistency should, in time, lead to a close and loving relationship.
Other options to securing a resolution
If direct communication is difficult, a mediator can help to neutralise the discussion by reducing the emotion in the room and ensuring that the needs of the children remain the key focus throughout.
However, if a determination is needed by a third party, consideration could be given to arbitration. This occurs outside of the court process and while the arbitrator’s fees will be an additional cost, it can be less expensive than the courts in the long run, because it can lead to an outcome with fewer hearings. You would also know that the arbitrator is dedicated to your matter rather than having to juggle a number of matters, as a judge usually has to do. An arbitrator’s decision will be final in the same way as a court decision, with both being subject to very limited grounds for appeal.
Thought could also be given to the instruction of an independent social worker (ISW) rather than CAFCASS. This will lead to an additional cost, however the ISW would decide how much time they need to conduct thorough enquiries in order to get a better understanding of the issues and the children’s wishes and feelings. They will then be able to provide informed advice to the court and to the parents, which could lead to an agreement and the suspension of proceedings.
Thus while we are not as critical of the court process as Dispatches has been, we advise to only consider court proceedings after other avenues have been explored. Try to not become polarised but instead consider matters from the perspective of your former partner. Otherwise, the court process will mean that you both will no longer be in charge of the final decision, which, according to Dispatches, only 30% of parents were happy with.