Following his article in Family Law Week (1) in which he argued for the greater use of non-legal skills in the family justice system, Richard Gregorian, family law solicitor, explains in more detail the practice model which enables family therapists to have a far greater influence in determining the outcome of disputes involving children following marital or relationship breakdown whilst broadening their practice.
Currently, the family justice system and family therapy exist, to a very large extent, separate from one another. In fact, in the same way that there would not be any need for criminal lawyers if nobody committed a crime and little need for contract lawyers if everybody kept their word, there would be no need for family law solicitors or, indeed, any family justice system if separating or divorcing parents could unify themselves behind what was in their children's best interests. Such a radical move as abolishing the family justice system is not entirely without its supporters - even if one leaves to one side the understandable unhappiness of those parents forced into its machinery at a time when they are experiencing high levels of distress and upset in any event. Indeed, the Family Law Society, a support group for parents whose contact with their children has been impeded or restricted by parent or court have as one of their main tenets, equality of parenting. They ask why is it that parental capacity within marriages or relationships is beyond the scrutiny of the state, save for instances where the standard of parenting is such that the police or social services need to become involved, and yet many thousands of hours and even more thousands of pounds are spent by warring parents post relationship breakdown in seeking to undermine each other's previously uncriticised parenting.
I do not believe that many people need to be convinced about the merits of dealing with family disputes post separation, particularly when involving children, in a way which does not involve acrimonious litigation. Mediation is the most quoted alternative but it does have its problems. The very thing which must be mediated to ensure both parents reach agreements regarding their family post separation which enjoy both longevity and are reached from a position of empowerment - the parents’ belief systems towards each other - are very frequently not addressed due to limitations on the mediator's training and skill set. It is very likely that this is the reason behind the findings of the research undertaken by the Ministry of Justice in relation to longer-term outcomes of in-court mediation (2) found that about 60% of agreements reached by parents had been dropped, or had broken down, by the two year follow up point – this being due to one or both of the adults not supporting the agreement rather an adaptive change to circumstances. Further, two years after mediation, the majority of parents involved in that research continued to report a negative relationship with their co-parent that had not improved, or had worsened. At the two year follow up point, the number of children with borderline or abnormal scores for reporting psychological distress on a standardised measure remained about double the United Kingdom norm. One of the main conclusions reached in that report was that there needed to be more relationship based or therapeutically-orientated interventions, under the umbrella of public health rather than the family justice system.
In addressing the interactional difficulties of the parents and the family unit as a whole as a precursor to reaching workable agreements in a therapeutic as well as a practical environment, family therapy has much to commend it (rather than mediation, as is presently the case) as the compulsory first step in any parent wishing to embark upon family litigation.
For a number of reasons, however, family therapy may not provide the solution for the family. Nobody can be forced into therapy and once there it may be that one or both of the parents do not trust themselves, let alone the other parent, sufficiently to take responsibility for reaching agreements without the involvement of the ultimate decision-making authority, the court.
That does not mean that the skills of a family therapist should be left at the meeting room door when a parent first decides to instruct a family law solicitor to protect their interests. Indeed, it is the insistence of the legal professionals in the family justice system to work alone, save for typically limited court appointed mental health care professional expert input, that in my view the family justice system has attracted a great deal of criticism.
I should stress that I do not accept many of the stereotypes relating to family lawyers; most commonly, that they purposely manufacture delay and acrimony between the parents for personal financial benefit, or that they see nothing wrong in subordinating the interests of the children to their wish to win cases or that they create feelings of helplessness in their clients by displaying a lack of empathy and understanding of the uniqueness of their client's case and the basis of their clients’ genuinely held beliefs as to what outcome is in the best interests of their child. I do, however, believe very strongly that the unwillingness of family lawyers to involve other experts with non-legal skill sets more intimately in the service they provide to their clients contributes greatly to these outcomes and is a very significant reason for parents becoming increasingly frustrated and disillusioned with their own legal representation let alone those other individuals and agencies which they commonly feel are aligned against them.
In my experience, the reason for this frustration and disillusionment with the client's own legal team is invariably because the client neither feels listened to nor understood. This is hardly surprising when at the very core of the parental dispute are not the niceties of legal precedent and procedure but human decision-making and interactional problems. The most common complaint amongst clients of family law firms is that their solicitor approached the case in a legalistic way from the perspective of seeking only to acquire and utilise the core facts, provided they were consistent with legal precedent and seemed uninterested in the emotional and psychological factors which the client saw as the reason for the relationship breakdown and problems in post separation co-parenting. By adopting this solely legalistic approach, the client feels that the uniqueness and importance of the case to their legal team is diminished. The client is also exposed to the possibility that their case is run on too narrow a basis. Without such a holistic strategy, the client also runs the risk of being unable to give the judge an alternative child centred reality in which to believe rather than the usual stereotype of two warring parents who have both forgotten the interests of their children when all that exists are a series of allegations, denials and counter allegations from each parent.
Due to their training and the holistic approach they take to the family unit and the characteristics of the individuals involved, the involvement of a family therapist from the very beginning of the client's case would have the following benefits:
This practice model therefore:
The Family Law Week article has generated considerable interest and support amongst family therapists and the mental health care community who not only see an opportunity to change the system for the better but being facilitators in that change through an expansion in their own business.
(1) The article can be found at http://www.familylawweek.co.uk/site.aspx?i=ed52233
(2) Ministry of Justice Research Series 15/7 The Longer-Term Outcomes of In-Court Conciliation by Dr. Liz Tinder and Joanne Kellet, November 2007.
Richard Gregorian was formally a commercial law partner in a leading London firm of solicitors. As a result of being involved in his own international matrimonial litigation, it became clear to him that the application of family law could benefit from both an understanding of human decision-making and behaviour as well as commercial law standards of client service. He used a joint legal-psychological approach in his own case to great effect with the assistance of Mr Gavin Emerson. He now practises in family law full-time using this approach in all disputes involving children. Clients (including the very many parents he speaks to on a second opinion-pro bono basis), mental health care professionals, and politicians have all confirmed the good sense in adopting such an approach which works within all aspects of the present system.