Posted by The Family Law Company on 30th October 2014

Norman HartnellOnly Mums and Only Dads, the Community Interest Company (CIC) responsible for the creation of The Family Law Panel organised a forum in Westminster on Monday, October 27.

The topic under discussion was ‘How can we limit the overwhelmingly negative impact of divorce on parents, children, wider family and society as a whole?’ is central to the objectives of the panel, which aims to provide free, accurate and easily accessible professional advice to single parents regardless of background, ethnic group, sexual orientation or family set-up.

Speakers at the event included Nigel Shepherd, Vice Chair of Resolution and Family Lawyer at National Firm Mills & Reeve; Susanna Abse, Chief Executive Officer, Tavistock Centre for Couple Relationships; Duncan Fisher, Founder of Kids in the Middle; Sam Challi, Information Manager, MIND and Sion Humphreys, Policy Advisor and former Head Teacher, National Association of Head Teachers.

Norman Hartnell, The Family Law Company’s Managing Director also spoke, and shared his views on family law and what changes need to take place to improve the system. Below, we have shared Norman’s discussion from the Westminster debate which we hope will prove helpful and insightful into the kind of processes Norman would like to see put in place:

Family law isn’t working as it should. There is confusion from the law makers as to its purpose and muddled thinking in its application resulting in numerous injustices.

  1. The purposes of family law

I’d invite the debate to go back to fundamentals, to identify the broad goals and principles of what family law’s purpose is. I propose they are twofold, namely:

  1. First, the protection of vulnerable children and adults from harm in the context of family breakdown or abusive behaviour.
  2. Secondly, the provision of a fair conflict management system for those involved in relationship breakdown, to create a level playing field where otherwise the exercise of power alone (on a might is right basis) would determine outcomes.
  1. So what’s the problem
  1. So what are we hearing from the law makers?

There are calls for ideas from the President, from the Justice Minister and from the legal aid authority. What are their governing principles?

  1. The government’s driving principle is short term cost saving, at the expense of creating longer term problems which are now coming home to roost. Government strategy on mediation has failed, far fewer are financially eligible since April 2013, so rather than doubling the take up of mediation as foretold, their cost based actions have led to a near 50% decrease.

Further, government departments, think in self-contained silos, they don’t do joined up thinking. Their strategy on dv has been to give priority to the criminal system focussing on measurable crime statistics and punishment rather than the protection of the individual through the range of remedies afforded by Family law.

  1. The Judicial response has been to devise processes in great detail by Practice Directions geared to the needs of the courts; not primarily to respond to the urgent needs for example of parents who in the context of a breakdown of a relationship are denied contact to their own child for months on end.

Let’s consider 2 examples of where things are going wrong, where the abuse of power by individuals is not being addressed adequately by our systems.

  1. The problem of increasing domestic abuse

My suggestions are:

  1. The scandal of children losing contact with a parent

The thing which means more to any parent than anything else is the ability to have a relationship with your own child, it is fundamental.

If a stranger abducts a child, the outcry for action is rightly immediate, the full panoply of the criminal justice system kicks in to use police intelligence to locate and rescue the child.

If a parent abducts a child abroad, 22 miles across the Channel, the bereft parent gets immediate free legal aid and the government in the form of the ICACU leaps to their aid.

But what happens when a parent in this country simply says “no” and denies the other parent contact to a child?

Let me tell you what the real process looks like and ask, is it any wonder that there is a huge sense of injustice which finds expression in anger against anyone connected to the system? Remember that every day for a child feels like an eternity.

The delay occasioned by the court process in private law matters is in stark contrast to the 26 week limit imposed robustly by Judges involved in care proceedings.

My suggestions:

  1. That adopting a needs based problem solving approach in cases where there has been a denial of contact with a parent, the court introduces an effective triage system operated by a Judge, making a denial of contact a good reason not to have to attend a MIAM. That a court hearing takes place within 7 days when the other parent would be required to attend and the court would order a re-establishment of contact immediately with such safeguards as may be necessary, unless there is a good reason to suspect that at least supervised contact cannot be arranged safely. That legal aid should be available for all such cases.
  1. That for all issues the approach currently employed in mediation should be the template for the resolution of all family issues, and that we should be moving from the adversarial model to one in which conflict is managed in a constructive way.

How is that done? It is a two stage approach, the gathering of information and the consideration of options; all proportionate to the matter in issue. If something needs a quick intervention, then the information proportionate to that should be gathered and a robust decision made.

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