Of course parents, not courts, should be making decisions about children

Children|Family Law|October 3rd 2019

I saw a brief discussion on Twitter the other day that raised the issue of whether it was appropriate for courts, rather than parents, to make decisions about arrangements for children, the suggestion being that courts don’t, or can’t, do a ‘proper job’.
It’s an issue that I have seen raised many times over the years and the answer, such as it is, is slightly contradictory.

The suitability of courts

Let us start by looking at the suitability, and ability, of the court to make decisions about children. There are many aspects to this, and I could certainly write quite a few posts on it. Here I will limit myself to just five points. The word ‘definitely’ will appear in each of them.

Firstly, the court is definitely not the most appropriate place for disputes over arrangements for children to be resolved. Courts are for many people formal, scary places. They are places where criminals are dealt with (often in the same building), and that is suggestive that the parents are somehow wrongdoers before any investigation of the facts has even taken place. And to make decisions affecting the upbringing of children in such places is, to many people, quite wrong.

Secondly, the court is definitely not in the best position to make decisions about children. The court is always ‘one removed’ from the children, having to use an intermediary to ascertain what is actually happening ‘on the ground’. And that intermediary can only ever grab a small ‘snapshot’ of what is happening as, unlike parents, they cannot be there all the time.

Thirdly, the court definitely makes mistakes when it comes to making decisions regarding children. Of course, it does. Whether it makes more mistakes than parents or any other body charged with making such decisions is a matter for debate, but I’m sure many would argue that it does.

Fourthly, the court is definitely too slow to make decisions. Delay, as we all know, can be detrimental to children. Either courts speed up, which is unlikely given the additional resources that would be required, or they are replaced by a body that can do things more quickly. But that, too, would require resources.

Finally, the court could definitely be better at enforcing its decisions. As we will see in a moment, enforcement is a necessary element of anybody charged with making decisions about arrangements for children, and all too often the family court is found lacking.
So there is certainly some truth in the suggestion that courts don’t, or can’t, do a ‘proper job’.

Parents should make decisions

Assuming that they are both caring parents with a reasonable level of ‘parenting skills’ (whatever that means), then of course parents, not courts, should be the ones to make decisions about arrangements for children. But the simple fact of the matter is that sometimes they can’t, or won’t, make decisions. When that occurs, someone has to make the decisions for them.

And in the end what is the alternative to a family court? If decisions have to be made, then they must be made by an expert decision-making body. And there must be some method of enforcement because decisions that can’t be enforced if they are not complied with are worthless. This decision-making body is already beginning to sound suspiciously like a family court.

I realise that nothing I have said in this post is new. Indeed, I am sure I have said it all myself here previously. Probably on many occasions. But I make no apology for that. As I indicated at the beginning, this is a discussion that won’t go away. And nor should it. I don’t know of a better alternative to the court process for sorting out children disputes, but that doesn’t mean that there isn’t one, and the search for one should go on.

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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