As a quick glance through the comments on this blog (something I try not to do too often) will tell you, there are a lot of people out there who are unhappy with the family justice system. They have been through the system and come out the other end with an outcome that does not satisfy them. They expected the system to sort out their problems, but it has not. But are they simply expecting too much of the system?
To answer the question I think we have to begin by looking at why people go to the family justice system. I’m not talking about those who do so simply to put into effect something that they have already agreed or accepted, such as an uncontested divorce or a consent order setting out a financial settlement. I’m talking about those who go to the family justice system because they can’t resolve a family dispute themselves. They go to the system expecting the court to resolve it for them.
OK, all of that is obvious, but the real question is: why can they not resolve the dispute themselves?
The reasons are, of course, many and complex. They are going through relationship breakdown, one of the most traumatic events in their lives. They will be stressed, they will be upset, and they may well be angry. The reasons for relationship breakdown are also many and complex, but may involve fault, on one or both sides. They may have behaved badly towards one another, and may continue to do so. They may be quite unable to put the past behind them and look to the future. Their relationship is so broken that they can’t even deal with one another anymore.
And then they expect the family justice system to sort it all out for them.
But what is the family justice system designed to do? It is designed to dispense justice. It will decide how the family dispute should be resolved, and impose its decision upon the parties.
But that is all that it will do, and all it can do. In short, courts can order people to do things, but can’t resolve the underlying problems – only the parties themselves can do that. The family justice system is simply not equipped or designed to deal with those underlying problems.
Alright, that is not entirely true. For example, social workers and welfare officers will try to address the underlying problems. And good judges will also try to guide the parties in the right direction, and design their orders to minimise conflict. However, there is only a limited amount that can be done, and once the court’s decision is made, the parties are usually left to their own devices once more.
A feature of modern family law is that it will try wherever possible to finalise matters between the parties, so that they can get on with their lives. Hence the Matrimonial and Family Proceedings Act 1984, which aimed to encourage the clean break. But there are of course times when matters cannot be finalised, and the parties will have to have a continuing relationship, whether they like it or not. The primary such situation is where there are minor children (family law usually reaches its limit when children reach their majority).
Disputes over arrangements for children are usually the most emotive of all, and the ones that give rise to the greatest sense of dissatisfaction with the outcome. Now, I’m not for one moment suggesting that the family courts always reach the ‘right’ decision in children disputes, even if there is a ‘right’ decision. Of course they don’t. They just impose a decision, and expect the parties to abide by it. And it is that latter point – abiding by the decision – that is the reason why we have to use courts to resolve family disputes. Someone has to make a decision, and that decision has to be enforceable. Only courts (or similar, such as tribunals) can impose enforceable decisions upon people.
Courts will look into the underlying problems behind family disputes but they are not, however, designed to resolve them. Those problems will have impacted upon the decision that to court can make, and will often remain long after the decision has been taken. As a result, decisions that are unsatisfactory to one or both parties are made, and decisions do not always prevent on-going problems, such as difficulties with contact, that may never be resolved.
In the end it is only the parties, perhaps with assistance from outside the family justice system, who can resolve those problems. To expect the family justice system to resolve them for them is to expect too much, and to impose an expectation that the system was never designed to meet.
Photo courtesy of weisspaarz.com.