Why courts at all?

For his talk in Edinburgh for Shared Parenting Scotland, Edward Kruk, chose the title: “Why courts at all?”

Professor Kruk, Emeritus Professor of Social Work at the University of British Columbia, set out in detail a child-focused case for a presumption of shared parenting when families separate. He showed how family mediation and other healthier approaches can replace the standard adversarial legal ones.

His title is a question that was posed 35 years ago. That question is still “rarely asked” and it “remains unanswered”:

Burgoyne’s question remains unanswered; indeed, it is a question that is rarely asked.

Shared Parenting Scotland
Jacqueline Burgoyne 1944-88

“Why courts at all?” was first asked by Dr Jacqueline Burgoyne, a prolific UK sociologist of family life. She died young before she could come up with answers. But she had already gained a strong reputation from her lively academic work and public presentations.

Divorce Matters (1987) is still relevant now. So is a book of “Writings” published later in her honour. Her challenging question is hard to find in print. But here’s some of what she said then:

It is not uncommon for couples to be near to an agreement when each of them goes to a solicitor to try and finalize matters. This results in a sudden increase in the general level of aggression and anger between them, which all too often focuses on arrangements for the children. It is one of the dangers of the adversarial system under which our divorce courts operate. Of course, it need not be like this. …

Jacqueline Burgoyne et al, Divorce Matters (1987) p.144

A solution that creates problems for amicably separating couples cannot be a good idea for any other more conflictual separations.

Since that time, legislatures around the world have continued to pursue reforms to family law and courts without changing that pattern described decades ago.

It makes sense for Prof Kruk to keep all of us asking: “Why courts at all?”.

Photo of the family in the rain in Vancouver BC, James X, Unsplash