01 October 2010

The mistake many people make about the Family Justice System is that it is the best forum for the resolution of family disputes. It isn't. 

Speaking at a Families Need Fathers event on 20 September Sir Nicholas Wall said: "People think that post-separation parenting is easy - in fact, it is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute".

I doubt that intelligence alone is the driver.

Re S (Transfer of Residence) EWHC B19 (Fam) is a case in point. The judgment of HHJ Clifford Bellamy (who was sitting as a Deputy Judge of the High Court) begins:

"On 21 July 2010 a wholly deserving father left my court in tears having been driven to abandon his battle to implement an order which I had made on 4 January 2010 that his son, S, now aged 12, should move to live with him. The order of 21 July, made by consent, brings to an end litigation relating to S which has been before the court almost continuously since June 1999."

S's parents were described by the Judge as "professional people". 

One wonders what drove intelligent people to engage in 11 years of litigation in relation to the care arrangements for their son - whom they must clearly love deeply.  The experience must have been corrosive for all involved. 

The fundamental question arises whether at any point a therapeutic alternative to litigation was considered by the parents, their advisors or the Court.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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