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Family justice: the human condition

Date:26 APR 2022

In the family justice system, we are dealing daily with the human condition. How people respond to stressful situations is part of that condition, is normal and is to be expected.

In Lancashire County Council v M and others (Lancashire Clinical Commissioning Group intervening) [2021] EWHC 2844 (Fam) care proceedings had been issued after a private care group providing professional care to a seriously disabled 12 year old boy, W, felt they could not continue to offer a service in the face of perceived resistance and interference from W’s parents. The care staff felt ‘undermined and belittled’ and the parents’ behaviour at Alder Hey Children’s Hospital, where it was planned to admit W for investigation, was described as ‘highly concerning’, although they were ‘appropriate and respectful on the ward’.

The parents were shocked when the care group withdrew, believing they had an excellent working relationship, the mother accepting she had been emotive through concern and passion.

Dr Kate Hellin, psychologist, was instructed to provide a psychological assessment of the parents in the hope of better understanding their interactions with professionals. In his judgment Hayden J described the report that resulted as a ‘landmark report, the analysis of which requires wider dissemination’.
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Dr Hellin did not consider that either parent had any sign of mood related problems, personality disorder or serious mental illness. The mother’s psychological state had deteriorated as a result of the demands placed on her by W’s complex health needs which had become acute at a point of a health crisis for W. At that point the mother would have met the criteria for post-traumatic stress disorder, which she no longer now met. This had left a legacy of a ‘heightened level of resting anxiety’ which was ‘rational’ and based in the ‘cumulative reality of life-threatening events in [W’s] life and the uncertainty of his condition and prognosis.’ The mother’s response to those very challenging circumstances was ‘normal’ and to be expected, said Dr Hellin, ‘in even the most psychologically robust person’.

The father worried about the mother. They had different coping mechanisms; the mother attempting to take control while the father was more avoidant and particularly adversely affected when the mother became overwhelmed. This placed a strain on the parents’ relationship, although they remained committed to one another and phlegmatic.

Hayden J observed:

‘Dr Hellin was clear that the court would not be best assisted by evaluating the issues in terms of the parent's perceived failures or any mental health difficulties. It requires a recognition by the professionals that these are ordinary parents dealing with extraordinary circumstances. Dr Hellin considered that the entire aetiology of these challenging circumstances is better understood within “a different paradigm” and should be considered from “a systemic or organisational perspective”.’

Dr Hellin’s conclusions were summarised in this way:

  • ‘There are certain features of the system around [W] which make it more, rather than less, likely that problems will arise in it. First, it is a very complicated system.
  • Second, the stakes are very high. Ultimately, this is about keeping a child alive and ensuring his best possible quality of life.
  • Third, commissioners face what many would consider to be impossible decisions about resource allocation.
  • Fourth, care work is intrinsically stressful, and the pressures on health professionals and care staff have been vastly increased by the Covid-19 pandemic.
  • These factors all affect the emotional climate of the system around [W] and the relationships between those components of the system.
  • The system around [W] has become sensitised and inflamed. Feelings have run high and perspectives have become polarised and entrenched.
  • [M] and [F], individual professional staff and their organisations have become stuck in polarised beliefs about each other.
  • It has become difficult for the parents and for professionals to respond moderately in ways that sooth rather than exacerbate the dynamic tensions between the different parts of the system.
  • I hope it will be apparent that this analysis does not apportion blame.
  • The family, commissioners and health and social care providers are all affected by the dynamic context in which they are trying to do their best.
  • Rather than looking to change the parents, I recommend a systemic intervention drawn from organisational psychology, psychodynamic psychotherapy, group analysis and systems theory. (Hayden J’s emphasis)
  • I recommend that an organisational or a systemic supervisor/consultant is employed to work with the system and facilitate systemic meetings within which the aims set out in the paragraph above would be addressed.
  • The involvement of the Court has radically shifted the dynamics of this system.
  • The involvement of their legal representatives and of the Court, a neutral authority, has diluted the emotional intensity of the polarised ‘them and us’ dynamic which previously existed between the parents and the health/care providers.

Hayden J concluded:

‘It is important to emphasise that the provision [in section 31(2)(b)(i) Children Act 1989] “not being what it would be reasonable to expect a parent to give” is not to be regarded as an abstract or hypothetical test but must be evaluated by reference to the circumstances the parent is confronting i.e. what would it be reasonable to expect of a parent in these particular circumstances, recognising that in a challenging situation many of us may behave in a way which might not objectively be viewed as reasonable. The test is not to be construed in a vacuum nor applied judgementally by reference to some gold standard of parenting which few (if any) could achieve. On the contrary, it contemplates a range of behaviour, incorporating inevitable human frailty. The reasonableness of the care given requires to be evaluated strictly by reference to the particular circumstances and the individual child.’

Hayden J noted that a similar dynamic frequently arose in the Court of Protection when dealing with incapacitated adults.

Why do such dynamics arise?

Why do such dynamics so frequently arise, not only in the Court of Protection but across the broader terrain of public and private law? The answer lies in the existence and workings of the unconscious and in the nature of social and cognitive processes. A better understanding of these is a step towards finding ways by which to address, and better, pre-empt, these situations of corrosive, often escalating conflict within and between families and professionals creating the states of impasse too often before the courts.

The unconscious factors which govern the functioning of systems have been described comprehensively elsewhere.[1] Here we briefly set out a few such processes. The notion of the unconscious (alongside intention and volition) in determining behaviour, is generally accepted; Freudian slips or forgetting important things, for example. Not only is the behaviour of individuals governed partly by unconscious processes but so too is the functioning of the wider system: families, teams, professions, organisations and their component parts.

Much of our unconscious activity serves the purpose of protecting us from unpleasant or intolerable feelings or fears about ourselves and about the world around us. We suppress, repress or project unsavoury aspects of our own character and behaviour so that we can preserve the notion that we are pleasant, good people. In doing so, we polarise and simplify into good and bad (splitting). We identify with the ‘good’ and project the ‘bad’ into others in order to deny it in ourselves (projection). We perceive ‘the other’ as lesser so that we can feel better about ourselves. Splitting and projection are the technical expressions captured more succinctly in contemporary language in the expression ‘othering’.

These are intra-psychic process expressed interpersonally. They may be relatively benign; for example, in the mutual disparagement found between rival football teams. However, they can be destructive. Under conditions of extreme stress and anxiety, ordinarily psychologically robust people can become paranoid, splitting and projecting intense emotions to the extent that they feel the other person or group to be malicious, even dangerous.

Groups and organisations behave according to these same processes especially in situations of high anxiety. Splitting and projection reverberate around the system, between parents and professionals, between different professionals, between their teams and organisations. It takes the form of subtle (and not so subtle) derogation, disparagement, judgement, covert and sometimes overt attack (for example, an unchallenged belief in mental health services that mental health staff are more skilled, more professional than social workers, a prejudice seen often in clinical practice). Family lawyers are no more immune to this than anyone else.

It is these processes which create the polarisations found between warring parents, between parents and for example, Cafcass and social workers. On both ‘sides’ there is a loss of realism and nuance. For professionals, it is more palatable to perceive parents in proceedings as somehow meriting their fate because they are difficult, damaged and uncooperative. It is harder to acknowledge ‘there but by the grace of God go I’, to re-own the split off and projected aspects of oneself. Professionals blame parents because they are protecting themselves from the human misery to which they are exposed day in and day out.

This is why, though victims of abuse, children and adults alike, may well need the protection of the court, families are often seen as ending up in court as a result of their perceived behaviours, because they have ‘failed to engage with professionals’ , ‘failed to work with support services offered’, because they cannot work together towards co-operative parenting, perhaps refusing to take part in mediation.

The common lexicon of blame-ridden language reveals the lack of understanding of the extraordinarily difficult positions parents find themselves in. It is the result of professionals’ unconscious attempt to distance themselves from the stress and pain of the job. The upshot is that professionals behave in stark contrast to their advice to parents - that they must try to see the situation from the child and other parents’ or professionals’ perspective and keep an open mind to constructive ways forward.

In truth, many of the behaviours professionals perceive, and criticise, as unreasonable are perfectly normal responses, to be expected of families in crisis, required to engage with a stressed system the workings of which are likely to be a mystery to them.

Recent research by the Nuffield Family Justice Observatory highlights the additional needs of many families in the private law system (long established if not always well acted upon in the public law side)[2]. High levels of anxiety and depression amongst parents in the private law system are unsurprising and impact on their ability to engage. These high levels of anxiety and depression are both cause and consequence of the polarising and distorting unconscious processes which compound the difficulties.

A related idea is that of the ‘just world’[3], a notion from social and cognitive psychology. It is difficult for us as humans to rationally countenance the complexity and dangerousness of the world in which we live, the fact that we could go under a bus tomorrow, so to speak. We avoid the anxiety in various ways: denial or avoidance (just not thinking about such things) is probably the most common. We also use cognitive distortions such as the notion of a ‘just world’. This is a common underlying assumption which provides a sense of safety and comfort, however spurious. The idea is that we get what we deserve, that if bad things happen, we have somehow merited them (what goes around comes around, you reap what you sow etc.). The converse is that if we behave ourselves, bad things will not befall us. This confers an illusionary sense of control and safety in the world. We maintain it by holding a sneaking, probably unconscious, suspicion that if parents are in proceedings, they must deserve the mess that they are in.

Those working in safeguarding live with the chronic anxiety that a child will suffer on their watch, that they will be subject to the next high-profile enquiry (Arthur Labinjo-Hughes, Star Hobson). It is all too easy for those on the frontline to perceive parents as difficult rather than distressed, their managers as out of touch rather than overwhelmed. Managers are subject to similar anxiety. Typically, they face conflicts in role and task, between their overt job of managing the delivery of services to their clients versus working within severe budgetary constraints which limit their ability to perform that primary task. Their stress is passed up and down the organisation and beyond.

Almost all professionals working in safeguarding are motivated by a wish to do good, to help those with whom they work. Such positive values become crushed in a system under pressure in which professionals face the dilemma and disequilibrium of knowing the right moral course of action whilst lacking the capability to follow it because of excessive, workload demands, conflicting priorities et cetera. They become caught in the unconscious and cognitive processes described above without being properly aware. They are at risk of ‘compassion fatigue’ – physical and emotional exhaustion, leading to diminished ability to feel empathy or compassion for others.

The more complex the system, the more devastating the consequences of individual or system failure, the greater the influence of these psychological processes. In complex systems, there are multiple individuals and agencies, each contributing their own splits and projections, unconsciously imposing distorted perspectives upon other components of the system whilst trying to/having to work together. These distorting processes are amplified by anxiety. Families before the family court are inevitably worried and frightened. The stakes are high. For parents in private law hearings, the environment, language and process are usually alien and bewildering, this compounded by the reduction of legal aid and increasing litigation in person. Professionals may be familiar with the court environment but the stresses are significant nonetheless due to the level of risk/potential harm to children, austerity, underfunding and fear of making a mistake. Services are already lean to the point of starvation, all of this compounded by the effects of Covid. The whole system has been described as being in crisis.

Imagine then the experience of families having to engage with such a stressed and stressful system. Parents, whose children are on the edge of care and needing support, being asked to work with lawyers, social workers and other professionals who, however committed, lack the resources to do all they would wish. Separating parents, lacking information about structured, cohesive and accessible out of court services, find themselves in the family court which remains an essentially adversarial process due to splitting and projection, cognitive distortion and other polarising processes. The inherent anxiety of proceedings inflames those distorting dynamics and a vicious cycle of polarisation and acrimony is established, perpetuated unwittingly by the very fact that the matter is in court.

How awareness can help

We hope that by setting out some of the psychological processes which underlie the development of conflictual and sometimes seemingly intractable and/or repeated litigation, those concerned with safeguarding will be more aware and better able to guard against blindly perpetuating them. This is easier said than done. These processes are self-protective. Without them, we feel vulnerable and we tend to revert back to them quickly. Also, as an individual, it is impossible to stand alone against the prevailing winds of splitting and projection, against the shared distorted beliefs et cetera which exist within the wider system.

Still, awareness can help. In the case of W, Hayden J noted that, even though work had yet to start, the exposition of the dynamic, predicated on promoting mutual understanding and diminishing mutual blame, had helped both the care workers and the parents to better understand the challenges that each faced, diminishing the emotional intensity and significantly bridging the polarity that had impeded progress in the case and been inimical to W’s care.

There are already services which can help to address destructive unconscious processes and dynamics. Mediation is one, so too are family group conferences. Ideally, there would be wider use of organisational or systemic consultation involving as many as possible of the people involved in an acrimonious, intractable system. Such consultation allows for different people to meet each other in a neutral setting, to perceive each other more realistically, to understand others’ positions and pressures. Such ‘reality testing’ usually modifies projections and increases empathy and understanding between different people and between different components of the system. From there, it becomes more possible to find practical, positive, sustainable working arrangements.

Ideally, troubled families will not need to enter the court arena at all and would sidestep the likely exacerbation of destructive dynamics which arises from court proceedings. The Family Solutions Group recommends early triaging to assess families’ needs and diversion from the court system to holistic support thereby addressing issues arising from the relationship breakdown at an earlier stage and in a safe way, separate to or alongside mediation.

Professionals need to consider how parents are being asked to engage. We need to reflect on how our own projections, beliefs and assumptions are influencing what we ask and what we hear. We must try to take a holistic approach rather than a linear stance which sees parents as somehow ‘anti-child’. Attention to careful listening can help to overcome these negative processes. Active attention to truly listening and hearing brings a number of benefits:

  • better understanding of the needs of the family and individuals as they see them, not as professionals assume them to be
  • people who feel they are being listened to are likely to listen better
  • they may listen better to each other and be willing to hear others’ perspectives even if they do not agree with them
  • people who feel listened to are more likely to accept constructive criticism and advice positively and less likely to respond antagonistically
  • careful listening shifts an issue away from being a binary dispute with a winner and a loser. to a more objective and understanding approach
  • it holds the court and professionals to the same high standards we expect of parents.

Lessons may be learned from the Family Drug and Alcohol Court approach, seeking to provide some containment for parents so that they are in a better position to do the calm, rational thinking we expect of them rather being driven by the polarising dynamics that the court process engenders. It is clear from the work of the Family Drug and Alcohol Courts and Family Group Conferencing that listening, compassionate and respectful approaches are effective. These fundamental values and practices are often lost in an adversarial system under pressure.

Final thoughts

Nothing we have said should be seen as downplaying the very significant safeguarding concerns that arise in very many public and private law cases. Safety and protection must always be the priority – both for children and victims of abuse. We hope that in this paper, we have set out some of the psychological reasons for the often acrimonious and entrenched relational difficulties found between all of those involved in safeguarding systems. We hope that we have made clear that these are part of the human condition, the inevitable reactions of parents and professionals under pressure. Finally, we hope that we have identified some practical steps towards compassionate and safe systems for families and professionals in distress.

With thanks to Jude Eyre, Nuffield Family Justice Observatory, and Helen Adam, Wells Family Mediation and Chair of the Family Solutions Group, for their contributions to this article.

[1] A Obholzer and V Zagier Roberts (eds) (2019) The Unconscious at Work: A Tavistock Approach to Making Sense of Organizational Life, Routledge: London and New York.

[2] Uncovering private family law: Adult characteristics and vulnerabilities (Wales) - Nuffield Family Justice Observatory (nuffieldfjo.org.uk)

[3] MJ Lerner (1980) The Belief in a Just World. In: The Belief in a Just World. Perspectives in Social Psychology. Springer, Boston, MA https://doi.org/10.1007/978-1-4899-0448-5_2