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Amandeep Gill's Analysis: Warfare vs Child "Care"

Date:23 SEP 2010

Amandeep Gill

The headlines have been awash with quotes from Lord Justice Wall's speech to Families Need Fathers delivered on Sunday 19 September 2010.

The President spoke about the irreparable damage to children caught up in their parents courtroom warfare when parents use children as "both the battlefield and the ammunition" in protracted litigation disputes. Sir Nicholas expressed the desire for family law disputes to be handled in a "less adversarial" context.

Many childcare specialists have long grappled with high conflict cases in practice and various solutions have been explored. The coalition review of family law services is now well under way with mediation being highlighted for consideration as a means of avoiding acrimonious family law disputes.

There is a great deal to commend the use of mediation in certain disputes, even those involving protracted litigation as evidenced by Lord Justice Thorpe's judgment in Al-Khatib v Masry [2005] 1 FLR 381. Mediation is not however a panacea as the process is unsuitable where, for a myriad of reasons, parents are unable or unwilling to communicate effectively.

Other proposals include greater rights for non resident parents and a presumption of shared residence upon separation. The difficulty with both suggestions however is that the court cannot legislate for nor police separated parents' behaviour which is what lies at the heart of high conflict contact and residence disputes. Sir Nicholas touched on this aspect in his speech when referring to parents who "rarely behave reasonably" and that "there is nothing worse, for most children, than for their parents to denigrate each other."

Behaviour patterns develop, consciously and subconsciously during an individuals lifetime. So how do you change them?  Is it possible to compel a parent, or a child for that matter, to change their behaviour?  The answer to the latter question is clearly ‘no' as illustrated recently by the outcome in Re S (A Child) EWHC B19 (FAM). Here the Court's repeated attempts to effect a transfer of residence order failed due to the child's repeated refusal to engage with his father.

The first question is however more difficult to answer. Drawing on my own experience in private practice and having spoken recently to a Recorder about the issue, it is clear that in some cases, parents end up in court simply because they do not know what is expected of them by the family courts nor how to manage their relationship with a former spouse/partner. What would assist such couples is wider knowledge and education about how to communicate with one another effectively and more importantly to understand the damage inflicted on their children by protracted litigation and exposure to conflict.

Initiatives such as Resolution's ‘Parenting After Parting' may be of assistance where parents are capable of changing their behaviour. There is perhaps a case to be made for making programmes such as these coupled with a mediation service compulsory, before litigation can be issued in non urgent residence and contact disputes.

However, in cases where a change in behaviour cannot be achieved (for example due to psychiatric/personality disorders etc), the reality remains that when parents cannot work together to achieve a consensus about childcare arrangements, a decision will need to be made by an independent third party acting in the best interests of the child.

In my view it's better for that decision to be made by reference to the unfettered exercise of judicial discretion taking account of the individual facts of each case, rather than being based on presumptions. As Wall J, as he was then, noted in Re M (Intractable Contact Dispute) [2003] 2 FLR 636 in family law there is no "one size fits all solution".

Amandeep Gill is a Professional Training PSL at Jordan Publishing.