Sir Andrew McFarlane, the head of Family Justice in the UK, has supported a recent report which suggests that lawyers and Court proceedings should be the last resort when parents separate.
At present, around 40% of families take this course of action and the Court system is really struggling.
Instead, we should move towards a model of education for separating parents so that they can support each other and their children in their new roles and circumstances.
Of course the language and ethos of family law has changed considerably over the years, from the 19th Century when children were essentially property of the father, with the mother having very little or no say, to a complete reversal in the 20th Century of the ‘stay at home’ mother with significantly greater perceived rights than the father.
Thankfully, recent changes have abolished the types of orders which would give one parent the ‘upper hand’ and we are now in a position whereby both parents do have equal rights in law and the encouraged position is that the child should live with both parents at different times of the week (so long as there are no welfare concerns).
It is worth pointing out that there does not need to be an exact split of time to ensure that the children benefit from this ‘shared’ care arrangement. This provides a more level playing field and will hopefully support and encourage improved communication between the parents.
Whilst enhanced education would be brilliant, and the current Contact Activity Direction – the Separated Parenting Information Programme (or SPIP as it is often called) – receives very positive feedback from my clients who are referred onto it, this is only part of the solution.
As a profession, with assistance from the wider community, we can teach parents the theory as to why it would be better to work together, why it would be harmful to children if they bring them into the adult dispute or talk negatively about the other parent, but we cannot force them to accept and put into practice what they have learned.
All good family lawyers, will, as a matter of course, advise clients of all the other possible avenues to resolve their issues, during the initial meeting. These include mediation (which can currently take place virtually), collaborative practice, Arbitration and will also consider whether to signpost the client to counselling. So, from the outset, the profession is guiding clients down the right track for them, which may not necessarily be Court proceedings.
I am a strong advocate of these methods, especially given we can introduce trained professionals into those processes such as Family Consultants who can tend to the emotional aspects of the family and help parents through whatever they are facing.
However – and this why the Court process will still be used regularly by separating parents even if they are fully educated – separation, in whatever form, brings with it a high level of emotions which can impact upon people’s ability to be rational in the circumstances.
All family lawyers deal with clients who feel, contrary to legal advice, that they know what is best for their children. Often this is at odds with what the other parent feels is best for the same children. Sadly therefore, in these matters, the Court will need to decide. Parents should not feel bad about resorting to a Court application, if that is what their family requires.
If parents are struggling, a good family lawyer should be the first resort.
The lawyer should take an holistic approach to determine what is best for that particular family.
Whilst it would be unlikely for an immediate or urgent application to Court to be made (except in circumstances where the children could be at risk), it may be necessary sooner rather than later to ensure that children have a good quality relationship with both parents and their respective families.
