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Family court for separating parents: backstop or first base?

Date:6 DEC 2019
Third slide
Chief Executive, NFM

By the time you read this we may have a new government. At the time of writing it’s anyone’s guess what shape it will be, but however things turn out, I’m hopeful – rather than full of expectation – that sometime soon we can witness a sea change in how our family courts are perceived when it comes to separation and divorce.

I’m not suggesting separating parents do not sometimes need family courts to make settlements, just that our culture has elevated their role in separation way too high.

‘Backstop’. Remember that word? We used to hear a lot of it earlier in 2019! And in this election month I’m raising it again because that’s what the family court should be for separating families. A backstop. A last resort.

Nowadays in far too many cases the court has become more than the backstop that it needs to be.

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Let’s consider some of the issues that separating families who come to NFM find themselves having to face:

  • Who gets the Bonzo, the family dog?
  • Who takes little Jemima to her dental appointment?
  • Who’s going to Jemima’s parents evening?
  • Which set of grandparents sees Jemima on Christmas Day?

I ask you to consider: are these ‘legal’ problems? I’m sure you will agree that in essence, they are not.

But they have become perceived as such because separation and divorce is now framed as a ‘legal’ problem, or a series of them. I’d argue that separation and divorce arise in fact because of a series of ‘human’ problems which, in some cases, have a legal element to them.

NFM knows from experience the family court can not only fail to assist separating couples, it can actually get in the way of resolving their issues. In 2015 we ran a DWP-funded pilot programme which saw mediators working in family courts. They helped parents who had become entrenched in court processes to suspend legal proceedings, and meet with mediators to help them negotiate long-term arrangements for children, property and finance. The mediators coached parents to improve their negotiating skills and communicate more positively.

Over 300 families were helped by the project. Three quarters reported reduced conflict and stress, and an increase in positive communication. There were huge numbers of cases which were settled with mediator intervention, having been stuck in family courts for years – in one case a staggering 55 court appearances had been had since the 10 year-old child’s birth.

It showed how couples who had become entrenched in court conflict can, with the right help, find an exit from the drama and move on in a positive way … despite the court, not because of it.

I also want to consider separation experienced by cohabiting parents, for whom the law is very different to that for married couples. Whether you instinctively feel ‘for’ or ‘against’ the concept of family court being the right place for separating parents, there is no doubt that court powers to bring resolution for separating cohabitee parents are very limited indeed.

Some 48 per cent of children are born outside a marriage – a figure likely to rise, not decline. An unreformed family court culture can offer precious little help to those children if their parents separate.

Which is why I contend the family court as it stands is not fit for purpose… at least, not fit for the purpose our culture has assigned to it in separation and divorce.

Sadly, in most separation and divorce cases the court has become more than a backstop. In the new post-general election era, if that is what we find ourselves in, then Ministers, civil servants and family law professionals need to work together to get family court to a position of last-resort backstop. Not the first base it has sadly become.