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Constructive collaboration over children by John Bolch

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An interesting judgment popped up on Bailii yesterday. Well, it wasn’t really a judgment at all – more like a narrative. I suspect it may have been one of those judgments that would not have been published but for the President’s recent guidance aimed at the publication of more family court judgments.

The very first paragraph set the tone:

“This private law dispute demonstrates a number of phenomena. Firstly, that it is sometimes possible to achieve real and substantial progress as the result of the hearing itself. Secondly, that there can be incalculable benefits from the simple exercise of parents giving evidence and, just as importantly, listening to the evidence of others. Thirdly, that proceedings which begin in an atmosphere of adversity may swiftly evolve into an exercise in constructive collaboration. Fourthly, that protracted litigation over children is profoundly harmful to everyone concerned. And fifthly, that the involvement of skilled and insightful professionals  … has immeasurable advantages in (a) achieving a better understanding of the genesis of past problems and (b) assisting parents to an infinitely more constructive way of working together for the benefit of their children.”

The case was J and K (Children: Private Law). It concerned a dispute between parents over the arrangements for their twin boys, now aged twelve and a half. The dispute had raged for more than ten years, and concerned various issues, including parental responsibility, contact and even the boys’ last names. Between June 2003 and November 2013 there had been no fewer than twenty-four hearings.

The rest of the judgment describes the history of the case and how, against all expectations, the parents managed to resolve matters by agreement, the judge (Mrs Justice Pauffley) approving a shared residence arrangement. Whilst this is of interest, I don’t propose to go into the details here. Instead, I wanted to concentrate upon the points raised in that first paragraph.

The first point made by Mrs Justice Pauffley is perhaps the most unexpected. These days everyone is encouraged to resolve matters out of court, whether by mediation or otherwise, and many family lawyers advocate a non-adversarial approach, encouraging their clients to settle rather than go to court. However, sometimes court is actually the best way forward. It ‘forces’ the parties together and concentrates the mind in a way that may not be possible by any other means. If used constructively, as was clearly the case here, a full hearing can not just bring a resolution, but it can also bring an understanding of the other party’s position.

Which brings me to the second, related, point. Being a party to family proceedings is not just about making your own point, but also about listening to what others have to say. This is particularly important when dealing with disputes involving children, where positions can become entrenched and one parent often fails to realise that the other parent actually just wants the same thing as them: the best for their children.

Mrs Justice Pauffley’s third point is, perhaps, trite to family lawyers who have all seen apparently intractable disputes suddenly resolve themselves. Nevertheless, it is a point of which all litigants should be aware: always be prepared to grasp an opportunity for constructive collaboration, especially where the welfare of your children is at stake.

I had felt like saying that the fourth point, that protracted litigation over children is profoundly harmful to everyone concerned, does not need saying. On the contrary, it needs to be repeated over and over. All family lawyers have seen parents pursuing highly contested litigation, oblivious to the harm that it is causing to all particularly, of course, the children themselves.

Finally, Mrs Justice Pauffley pointed out the benefits to parents of having skilled professionals to assist them, helping them to understand how problems arose and how to move forward in a constructive way, for the good of the children. This is important: a good family lawyer, for example, is far more than just a person who advises on the law and puts your case.

And there we have it. A judgment that may not have been published a month ago, but instructive nevertheless.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers.

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