Give families “green, not harmful, footprints”

If we don’t want families to go to war, then we shouldn’t offer them an adversarial justice system. We should offer them green not harmful footprints. So said Helen Adam in her “Time for Climate Change in Family Justice” keynote at the UK’s Family Justice Council conference. Family lawyer, Sarah Phillimore, talked about the event in her Child Protection Resource blog.

The “climate change” analogy points us to a paradigm shift for family justice. It asks this: Are we leaving green footprints in the lives of the families or harmful ones? How does our system impact families?

And the answer is: Adversarial processes often worsen conflict between parents. They impact especially on victims of abuse and on innocent children. 

Under extreme stress even ordinarily robust people get intense emotions. They feel their ex as malicious, even dangerous. Family separation is always stressful for children but long term harm comes from particular kinds of conflict that adversarial courts fuel. Reducing parenting conflict improves long term outcomes for children.  

Families are vulnerable not vexed

Other speakers at that event talked about improving access to justice; Nuffield research on parents who come to court; and the experiences of parents and children themselves. Recordings of each presentation are on the website.

Domestic abuse is a mainstream concern. So Nuffield’s Jude Eyre (from 24.30 of the video) sees families as vulnerable rather than vexed. We’re serious about promoting the welfare of children and meeting families’ needs. So we need to look outwards to those who DO have the expertise to consider the wider needs of families. They are: health, social care and police, commissioners who decide funding, and third sector.

“We need to think of the ‘mental model’ of the person for whom we are designing systems. Whatever we do, in or out of court, these circumstances of vulnerability are present and real.”

Nuffield Family Justice Observatory

Barriers and a pilot scheme

Sarah Phillimore wrote: “The adversarial system is clearly the last place any stressed and anxious parents need to be. Cases that drag on for years – as many do – are clearly going to cause children life long emotional damage. We can all see how easily situations become polarised, how the children suffer the most when caught in the middle. We must identify better solutions for families than simply funnelling them through an adversarial system. That appears to achieve little and does it very slowly. But barriers to change are significant. There is little on offer than the courts, nor the funding, nor the political will and co-ordination.”

“Reforming the family justice system isn’t ‘sexy’ – but it is essential.”

Sarah Phillimore, Family Law Barrister, UK

However, six family courts are running a pilot scheme to improve the experiences of families. Rather than engaging through multiple court hearings, earlier gatekeeping and information gathering aims to engage and triage decisions better. Commonly, for serious cases, people say the judge in court is the main agency. The pilot sees the importance of other agencies for a more holistic approach teamed up with key partners including local authorities.

Four views on what going green means

At this event we heard four slightly different views:

1. Adversarial family law is harmful for families.
2. The services of a private family law judge are key for some cases.
3. To improve services holistically we should turn to non-legal agencies like designated local authority child protection and family support teams.
4. From the audience, Dr Sue Whitcombe, an experienced child psychologist and expert witness, put it more bluntly. Should we abolish the UK’s private family law system? She noted that more than 50% of families – the ones thought to need the judicial system – present allegations of harm. Safeguarding services would be best for those families. The audience, whose jobs depend on private family law, weren’t too sure about this idea.

So, this is like the climate change movement. Changing the system faces genuine concerns, vested interests and other barriers. But the notion of the need for change is alive. And parts of the UK are heading slowly towards creating green not harmful footprints.