The Independent

Courts cannot patch up disintegrating families

Since courts work on an adversarial model, parents in conflict simply lock horns in a more formal arena

Deborah Orr
The Independent
29 October 2002

Britain's family courts, closed, secret, distrusted, are now so beleaguered that even those who work within them are beginning to condemn them. Earlier this month, Sir Nicholas Wilson, one of the country's senior family judges, bemoaned in a lecture his inability to work within the present system.

Cases are so complex now, he argued, that specialists such as psychiatrists ought to sit in with judges. He could not claim that "as a husband and a parent and after a lifetime career in the family courts", he had developed sufficient insight to carry him through.

His analysis came hot on the heels of the testimony of Dame Margaret Booth, a former High Court judge who heads the National Family and Parenting Institute. She declared in a speech that the British system is decades behind those of Australia, New Zealand, the US and Norway. She seeks a change in attitudes, especially to fathers, far more radical than that desired by Sir Nicholas.

Now a study by the Centre for Research on the Child and the Family, at the University of East Anglia, speaks volumes about why there should be so much dissatisfaction. Researchers conducted 140 in-depth interviews with parents and children in 61 families affected by separation or divorce. Their findings are stark – that going to court over child contact only makes conflict worse.

This is not to say that the report has criticisms to make of the workings of the family courts per se. The sad fact is that contact works when separating parents are both committed to making it work, and that if one or both are not, then there is not a great deal that the law can do to change that.

In just 27 of the 61 families in the study, contact arrangements were classified as "working". In these families, "conflict between parents was low or suppressed, and parents made contact arrangements without legal intervention". Conversely, among families in which contact was not working, "lack of parents' commitment to contact, and parental conflict" were the two main reasons for failure.

There is a level at which this research – conducted for the Joseph Rowntree Foundation – is simply a detailed statement of the obvious. If a contact issue is so intractable that a parent feels it necessary to resort to the courts, then clearly there is a fundamental problem. And since family courts work on an adversarial model, parents in conflict simply find themselves locking horns in a more formal arena.

But, oddly, it is the fact that the findings are so obvious that make this piece of research so valuable. Discussion of contact arrangements in Britain and elsewhere is so deeply divided along gender lines that the researchers, who have listened to all sides and are careful to present case-study information that isn't gender-biased, breathe fresh air into a horribly familiar, stalemated debate.

Some of the key quotations given in the Rowntree Foundation's findings document are enough to make the reader weep. There is the insecurity of the non-resident parent, even in situations judged to be working. "There's a bit of apprehension, will they still want to see me, are they going to get on with everyone." And this sense of loss. "The seeing them was easy, it was the giving then back that was bloody hard and often I would... drive away in tears," says one father.

Then there is the intractability of resident parents whose idea of non-resident parents is pitifully limited. One resident mother laments: "My vision of when your mum and dad separate is that your dad takes you out on a Sunday and you go to the zoo. But it is control, control."

And, of course, there are the children, and the emotional burdens placed on them by their parents. One child, aged between seven and nine, is asked about feelings before seeing dad. "Well the whole family usually gets, well not upset, but they feel all uptight with it. I feel that I have to make the most of mum before I leave the house, before I leave to go with dad. I feel a bit more sad than happy because every time I go with my dad, then when I come back dad and mum always have an argument when mum comes to pick me up or something like that."

There are still the people who are somehow able to rise above their own adult anger, and put their children first. One resident mother grasps an obvious fact that many parents won't face. "...No matter what I feel or how hurt I am, he is the children's father and this is going to be it for the rest of our lives and so we have to get on."

And a non-resident father explains how grateful he is that his ex-partner actively supported his contact. "She used to say: 'Look the kids have started swimming at school and you can swim so how about taking them swimming.' ...So that helped because I felt... at least they'll be doing something they really want to do as well."

The report makes it clear that when contact works it is because both parents want it, and both are willing to make compromises over their roles. Non-resident parents have to accept their non-resident status without attempting to undermine the position of the resident parent. Likewise, resident parents have to be actively approving of their child's relationship with the non-resident parent in order for the child to feel "emotional permission to enjoy contact".

This is all common sense, and much of it is reflected in the conventional wisdom that frames judgements around contact anyway. It is already enshrined in the children's act of 1989 that parents should be encouraged to make contact arrangements without resorting to the law. Further, court proceedings are already child-centred, which can seem to some parents, struggling against a hostile ex-partner and his or her undoubted ability to emotionally manipulate a child, really to mean resident parent-centred.

Yet while even the casual bystander can see the simple sense in the approaches to fragmented families that work, it is difficult to see how any amount of litigation or of court orders can possibly create such a situation. "Solicitors were unable to increase the commitment of parents who were ambivalent about contact, and applications for court orders appeared to exacerbate rather than resolve parental disputes."

The conclusions reached by the researchers find an echo in the plea of Sir Nicholas Wilson, in that they call for more expert help. The report suggests that resources should be "redirected towards more creative work to improve parental and parent-child relationships rather than repeated attempts at imposing a solution. Children should have greater access to counselling services. Advice on how to make contact work should be available to parents, including the importance of consulting with children."

This sort of direction very much chimes with the solutions offered by Dame Margaret Booth, who advocates the sort of therapeutic solutions seen in other countries, and which place particular emphasis on parental education. A champion of the latter, Justice John Lendermann introduced parental education to the family courts in Florida when he found that 20 per cent of disputes were entrenched and unresolved. Now he puts that figure at 2 per cent. For those parents already suffering the pain of total separation from their children, it is little consolation. But the growing realisation that an alternative system can and must be found is something to be celebrated.

2002 Independent Digital (UK) Ltd