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The Family Solutions Group (FSG), a subgroup of the Private Law Working Group led by Mr Justice Cobb, recently published a detailed and comprehensive report, titled What about me? Reframing Support for Families following Parental Separation, investigating the solutions for separating parents to resolve disagreement. What is clear from the report is that the need to place children at the centre of all decisions requires constant focus and a renewed energy to ensure success. The stark options of court or limited non-court dispute resolution remain perhaps the clear obstacles to an effectively child-focused solution for cases that do not need judicial involvement. The FSG report proposes (at page 4):
‘…the creation of a framework of directly accessible community-based services for children and young people whose parents separate, offering them information, consultation, support and representation; the FSG urges the abandonment of the ingrained culture of traditional welfare protectionism, replacing it with a presumption that all children and young people aged ten and above be heard in all issue-resolution processes outside of the courtroom.’
One of the key tenets of the report is that issues that are not legal should not find themselves being addressed in the legal forum. It will inevitably risk a worsening of the issue to the specific detriment of the children.
The main purpose of the report therefore is to establish what is needed in the vacuum for separating parents between resolving issues themselves or through the courts. It is accepted that mediation is wholly underused and generally unknown by the general population.
Since the Children Act 1989 (ChA 1989), the legal approach to children cases and dispute resolution has changed dramatically. We are no more likely to find the word ‘custody’ normal than we would call a radio the ‘wireless’. However, it is apparent that the report has identified the very real need for language and focus to evolve much further, tearing us away from our comfortable adversarial system in which children suffer indirectly and directly much more than perhaps we imagine. An overhaul of the system is needed and the FSG report considers what can be done now to improve the system until further reform comes.
The report highlights and reminds us of the massive impact on children that family separation and parent conflict has. Through each chapter of children’s lives, conflict can define them as adults and parents of the future. A holistic and relational solution is recommended to preserve the ability for parents to cooperate, despite the breakdown.
The family courts are straining. The report in no way suggests that this comes as a result of time-wasting or malice but that alternatives are not readily available to assist resolve issues. The report advocates greater access to information and direct services, for parents and children. So too better means of allowing children’s voices to be heard in matters that impact them directly. The emotional health of parents and children are also identified as needing to be a key focus and that to give attention to all of these needs a multi-disciplinary approach involving therapists, parenting specialists and non-court dispute resolution, as well as the legal profession.
The report recommends the establishment of a Minister for Families to manage provision for parents and children, as the remit so clearly goes beyond that of the justice system. Public education is identified as a vital part of the reforms, to draw the public away from conflict and notions of winning and losing. This would involve abandoning legal language and ensuring the focus is on child welfare. A ‘Separated Families Hub’ website is proposed as a definitive source of reliable information and signposting.
While professionals and the courts champion the efforts of Cafcass to provide an independent perspective in cases, their involvement comes after a court triage process and in cases that are considered serious enough to warrant the input. This leaves many families without the assistance of Cafcass, itself a strained resource. The report recommends a framework of direct support services for children to inform, consult and support them as issues are resolved.
Going beyond the Cafcass filter is also advised, ensuring that all children over ten years old have their voices heard, with the assistance of the support services and dedicated parts of the Separated Families Hub.
The report is at pains to make clear that it is not rejecting the legal solutions available, but that they should be the preserve of families that need them, to ensure safety in the face of risk and harm. This the report labels as the ‘Safety Pathway’, providing in contrast the ‘Cooperative parenting Pathway’ with a very early triaging of families, identifying needs in the holistic range of support.
Parenting programmes are optional and invariably only taken up when required by the courts. The report recommends that attendance becomes a matter of course in all disputes and indeed an element of the no fault divorce procedure soon to arrive.
It is clear to all in the family law world that change is needed. The FSG is clear that the message needs to be changed as the next step. This will likely involve guidance and training for legal professionals to implement the change and to enable the evolution of the system to resolve family disputes putting children’s welfare first and centre-stage rather than simply to hope for it in the ageing existing system.
It is likely that the days of jumping through the mediation hoop to get to court will soon vanish, with judges and mediators focused on properly identifying those families who would benefit from avoiding court and requiring them to do so. With the judiciary actively enforcing case management powers and the requirement to explore non-court dispute resolution, not simply paying lip-service to it, change will begin.
More than a generation on from ChA 1989, and with the wholescale reform of divorce law upon us, evolution of the approach to parental disputes feels like another fundamental change, but one that is both essential and inevitable.
Sebastian Burrows is a managing partner at Stowe Family Law
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