The real lesson that the figure for couples needing the court to sort out arrangements for their children teaches us.
As I have said here many times before, I practised family law for about twenty-five years, during which time I dealt with thousands of cases. With that experience I thought I had acquired a reasonably good understanding of family breakdown generally, and the problems that arise from it. In particular I believed I had obtained a fairly accurate impression of what proportion of separating couples were unable to resolve their problems without recourse to the courts.
My impression was that there were broadly three categories: those couples who could resolve their problems without needing a lawyer, those couples who were able to resolve their problems with the assistance of a lawyer or a mediator, and those couples who required to court to resolve their problems. Obviously, I had nothing to do with the first category, so I could only guess as to their numbers. As to the second category, it seemed to me that this comprised the majority of my clients, and those who had to go to court comprised the minority. And of those who had to go to court the majority were able to settle without having to rely upon the court to impose a decision at the final hearing.
In short, it seemed to me that the number of couples who relied upon the court to resolve their problems was relatively small. Accordingly, when I first heard it mentioned some years ago (I don’t recall where) that only about 10% of separating couples go to court to resolve children disputes, that seemed to confirm my impression. That ‘10% rule’ has often since been repeated, to the point that it became generally accepted, including by me. However, new thinking on the subject has thrown my impression into doubt.
I know that many have challenged my impression in the past, but I was first really alerted to this new thinking in a speech that the new President of the Family Division Sir Andrew McFarlane gave to the Resolution Conference last month, and that has since been taken up by a post that the fathers’ rights group Families Need Fathers (‘FNF’) had published here last week.
Sir Andrew referred to work done on the subject by Teresa Williams, the Director of Strategy at CAFCASS. He said that figures she had compiled indicated “that around 38% of couples need to go to court to resolve disagreements over how they should care for their child post-separation”, which he called “a far cry from the previous comfortable urban myth based on a figure of 10%.” He went on to say that this new figure:
“…indicates a major societal problem, with nearly 40% of parents unable to sort out the arrangements for their own child without the need [to] apply for a court order.”
Hmm. 40%? That does seem awfully high. As I said above, I always subscribed to the ‘10% rule’, for the simple reason that, based upon my twenty-five odd years’ experience practising as a family lawyer, it ‘seemed about right’. I am prepared to accept that the 10% figure may actually be on the low side, but I’m quite sure that it was not the case that four out of ten of my clients with children had to go to court to sort out arrangements for them (and that is ignoring the number of couples who never needed to consult a lawyer anyway).
Of course, there is a major difference between how things are now and how they were when I was practising: the lack of legal aid. When I was practising, legal aid was available to all, which meant that all couples might have their problems resolved by agreement with the benefit of a lawyer, or a mediator (cases resolved by mediation are now about half the number they were before legal aid was abolished).
Anyway, whatever we think of it, it seems we must now accept the 40% figure as the new gospel. But why does all of this matter?
Well, in a sense it doesn’t. It doesn’t matter to the individual couple whether they are part of 10% or part of 40% of couples who need the court to sort things out for them. And you could say that it doesn’t matter to the court system, which is already (just) dealing with exactly the amount of couples that require its services.
However, both the President and FNF point to what the new figure says about the scale of the problem of parents unable to sort out arrangements for their children themselves, and the need to find new ways of dealing with the problem. That may be so, but if the figure is correct then that is an appalling indictment of parenting in this country. Surely, the vast majority (more like 90%) of parents should be quite capable on their own of working out what was really best for their children? Surely, therefore, the real lesson all of this teaches us is the need to educate regarding how parents should behave when they separate: how they should put their children first, how they should never use them as weapons in any dispute with the other parent, and that it is almost always in the best interests of children to retain as full as possible a relationship with both of their parents. Such a programme of education would I believe substantially increase the proportion of separating parents that are able to resolve their issues themselves, without recourse to the courts, or indeed outside assistance of any sort.
*With apologies to the band UB40 (at least that’s how I recall the lyric).