Are litigants expecting too much of the family courts?

Family Law|July 19th 2017

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.

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Comments(8)

  1. Bond says:

    Agree with the author . However , someone needs to take ownership, and usually the last port of call is Family court , it shouldn’t be , but that’s where I find myself because so far every one shows empathy , everyone says this is not right , every one says they understand but don’t have the power , and every one says the truth will come out in court . Too many mental health issues end up in court and surely that should not be the place for them . Judges are not health workers and health workers knowledge is limited , varied , and time and financially constrained . Every family court with regards to child proceedings should have a psychiatrist or psychologist in attendance . Children turn into adults , the abused too often turn into the abusive themselves , generational pattern s of learnt behaviour prevail. Children deserve better .

  2. Chris says:

    I’m sorry but there is a lot more the Family Justice system as a whole could and should be doing. For a start, CAFCASS are getting more and more snowed under with cases, saying Parental Alienation is child abuse and as big a health risk as drinking or smoking – but doing NOTHING about it. Inefficient. They do rushed, poorly researched and thought out reports which often do not get to the heart of the real issues in cases. Not to mention sometimes not even getting these important reports filed and served to court and all parties by the due deadlines, which then causes delays. They need an urgent overhaul to ensure they really are impartial and really do act “in the best interests of the children”!

    Added to this, the courts, yes, their hands are tied to some extent. But the length of time between Family Court hearings is too long. Sometimes there are inexplicable delays with paperwork and stamping of orders which then can cause the following hearing to be delayed by many weeks, thus dragging out cases further unnecessarily (I have been there!). When you have a case of alienation and a parent with no contact at all – even with court orders trying to enforce them, these delays from both CAFCASS and the courts make the problem much worse. There is a lack of effective intervention early on. Cases of alienation are allowed to continue – making it much harder to solve – then the courts almost seem to give up as the “damage is done”. If a parent is hell bent on “revenge” for a breakdown of a relationship and cutting the other parent out of their children’s lives, then they are not going to seek outside help themselves and the courts and their agencies have to move quickly and effectively to stop this damaging behaviour and re-establish the relationship between the children and targeted alienated parent.

    50 percent of contact orders are broken – yes half! 1.2 Percent of these orders are successfully enforced – one point two percent! These are genuine statistics and this is nowhere near good enough! Court orders are consistently broken with impunity and false allegations are allowed. I haven’t even mentioned the removal of legal aid for family cases and the crippling costs of legal representation – especially if there are a barrage of allegations thrown at you.

    So in short, I hear what you are saying, but the system needs an overhaul and needs to be much more efficient and do MUCH better!

  3. Paul says:

    No. Catagorically disagree with this statement. All I expected as a litigant in person was A FAIR AND IMPARTIAL HEARING. As is my right in law. That is absolutly not what I received. I was undermined by the actions of the court. Not the actions of my expartners defence. I expected to be treated with the same respect as a representing soliciter. That is absolutley not what I received. What I expected was a fair and impartial hearing. What I found was a nest of vipers trying to protect their jobs.
    However bad the decission was, I could have lived with it if I felt I had a fair hearing. But I catagorically did not receive a fair and impartial hearing. I do not beleive [name removed] magistrates court are in the business of fair and impartial hearings.
    I am a clean living hard working man who has always made a possative contribution to my childrens lives. I changed the nappies, i took them to nursary school, feed them, cleaned them. Did everything expected of the modern father. After we seperated I did everything in my power to stay a big part of their lives. It was never enough for my expartner. For me to be seperated from my children for no material reason is just utter madness. If anyone thinks this is justice then you have no idea what you are talking about. This system is a national disgrace and needs to change. Seperation of families should be the exeption not the norm. A woman should have no right to stop a man from seeing his children at all. If such measures were nessisary then those choices should be made by other professional people. The court should not be enacting the will of malicious mothers. Ending contact should not be an option the courts should be deciding when and how not IF. They should be taking action against people men/women who do not comply.
    Children should absolutly NOT be made key decission makers in this situation.
    For courts to hand this choice to them is utter cowardace of the highest order. Children forced to choose between parents in this way live with a life time of guilt.
    I know. I am one of them.
    I did not expect to much of the court to give me a FAIR AND IMPARTIAL HEARING.
    (*Comment edited by the moderators)

  4. yvie says:

    Well said Paul.

  5. Dr Grumpy says:

    While the clean break looks good on paper in reality the actions of the other party in not being totally honest and mistakes made by the presiding judge is going to lead to several cases where a Barder event will occur. All the other party needs to do is to wait for a year or two before ‘revealing’ their true course of action post FDR when a successful Barder argument an be difficult if not impossible to win!

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