I don’t like to say I told you so…

Family Law|June 4th 2015

I have been taking a closer look at the report into how County Courts share care of children between parents, following research by the University of Warwick and my old alma mater, the University of Reading.

As has already been mentioned here, the headline finding of the research was that the courts do not discriminate against men. I’m sure that that finding will have caused incredulity, dismay and even anger in some quarters. However, it comes as no surprise to me whatsoever, as I have been saying all along that the courts are not biased.

But there is much more that I agree with in the findings of the research. I can’t possibly cover all of the report’s findings in one post (the full report runs to 141 pages), but here are some of the other highlights:

  • The vast majority of the 197 case files examined by the researchers could not be successfully diverted to mediation. The majority of applicants in the sample had attempted to resolve their dispute, by private negotiation – going to court was a necessary last resort. I have said here before that mediation has its limitations.
  • Going to court does not amplify conflict between the parties – most cases examined were resolved by consent order. Again, the idea that court always amplifies conflict is something that the promoters of mediation and other methods of out of court dispute resolution often maintain, but it is not necessarily true at all.
  • Time taken in the courts process should not always be viewed as unnecessary delay. Courts used a series of directions hearings, interim orders and review hearings to gradually introduce contact and resolve positions that initially seemed entrenched. This was certainly my experience.
  • The removal of court as a viable option for parents following cuts to legal aid will mean that parents may agree to unsafe arrangements for their children or be unable to reach any agreement about having contact with their children. A worrying consequence of the legal cuts that has been raised before.
  • While it’s true that mothers were usually the primary care giver in contact applications, this was simply a reflection of the social reality that women are more likely to take on the role after a relationship breakdown. Again, something that I’ve been saying all along: it’s to do with society, not the law.
  • The new presumption that requires the court to presume that, unless the contrary is shown, the involvement of a non-resident parent will further the child’s welfare will make little practical difference to the way in which the courts approach the issue of contact, as it is clear from the sample that courts were already actively working towards regular overnight contact as the standard pattern for applicant parents and were prepared to work with reluctant children or chaotic parents to find workable arrangements. There would not seem to be any advantages that off-set the risks of the presumption being misunderstood by parents. Once again, I have said before that I don’t think that the presumption will make much difference to outcomes, and it may even make things worse, as parents fight for what they see as their ‘right’ of involvement.

Whilst I am of course happy that the report has confirmed my views, what is surely more important is that it vindicates the hard work done by all those involved in the family justice system to ensure that, wherever possible, there are fair outcomes for all those families that go through the system.

The report can be found here.

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.

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  1. Dr. Nigel Miles says:

    Well done John on your retirement as you continually keep informing us but you seem to have a lot of skeletons in yoyr career which you keep reiterating in similar blogs.

    Try to adapt to the changes which will be forthcoming. Long live the Pilgrims Fathers petition (on Change.org).and the future changes in legislation to responsible parity of parenting.at least in England and Wales ..well if homosexuals (are we still allowed to use this word?) can marry in.England and Wales in the balance of the best interests of children it beholds both mum and dad can be legally parentsc and engaging ones at that ….for without them the kids would not be born. QED!

  2. Luke says:

    The usual response from John of course, but the following response in the blog by the lawyer GeorgiaLee Lang takes this study (of no bias against fathers) apart:


  3. Nordic says:

    As I said in an earlier post, the data in this study is interesting, but most certainly do not support the authors’ main assertion. The way in which the authors interpret the results and try to explain away the more troubling aspects presented by the data, comes across as biased biased and not up to the standards one might reasonably expect from a serious academic piece of research. Read your ex-collegue, Lang’s, demolishment of their “conclusions” for a starter. It appears as if the authors tried to fit the data to their preconceived notions and views.
    Nuffield, which funded this study, is a charity with an established track-record of opposing modernisation of our out-dated family laws. When you combine academic studies with funding from organisations with an agenda in the subject matter, what you get is pseudo research. I would hope that the data, which genuinely does provide an interesting and more nuanced view of the workings of the court system, will be taken up by other, independent, researchers.
    That you and a study paid for by Nuffield told us so, does not make it so.

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