Despite the well-intentioned and very significant efforts invested by those involved in resolving private law children disputes within the family justice system (including international relocation or "leave to remove cases"), I do not believe that the critics of the system – mainly those parents unfortunate enough to be involved in it – are wholly unjustified in certain very important aspects of their criticism.
It is tempting to explain away parents' complaints as the product of their feelings associated with the highly emotionally charged and threatening environment in which they find themselves as they advocate the well-being of their children – being transferred from their separated co-parent to the institutions, agencies and professional advisers they believe have not listened and responded to their concerns for their child. Such dissatisfaction frequently manifests itself in a sense of disillusionment with the family justice system and those who operate it, most commonly expressed in complaints that it is discriminatory on grounds of sex, or that it has made matters worse for their post-litigation parental cooperation as a result of the adversarial nature of the litigation, or that it has exacted such an emotional and financial toll on the family that, whatever the court decides, the family has been left in a worse state than when it became involved in the litigation.
Whatever the family justice system does to address these criticisms, nothing seems to work. Although the opening up of the family courts to public scrutiny through greater access to the media is still work in progress, the likelihood of this development being an answer to such censure can perhaps be gauged by a consideration of the criminal justice system. There, notwithstanding that public hearings are the norm, if the press is to be believed, it seems to have done little to reassure the public that justice is consistently delivered and is reflective of society's values.
In the family law courts, it is clear that what little interest the media had in sitting through lengthy court hearings of non-celebrity parents has already been lost. Other critics argue for specific changes in the law to make it fairer for the child. Currently, such calls are most vociferously expressed by those opposed to the ease with which a primary carer can emigrate with the child in international relocation (or "leave to remove") cases – see, for example, the family law review undertaken by the Conservative party's think tank, the Centre for Social Justice, in Every Family Matters in July 2009 and the reunite report on international relocation by Dr Marilyn Freeman in the same month. Legislation, if enacted notwithstanding the support for the status quo amongst influential lawyers – in a recent letter (extracts of which appear on The Custody Minefield website) Sir Mark Potter, the President of the Family Division, has confirmed his support for the present approach to leave to remove cases articulated by Payne v Payne  EWCA 166 – will never fully quash the criticism.
Since a blanket prohibition upon leave to remove cannot be sensibly argued by even the most ardent opponents of the status quo, even if there were reforms so that permission would be granted only in exceptional circumstances, there would still be some parents extremely hard hit by the law. What is it then that clients want from their family lawyers at potentially the most difficult time of their lives and regarding the most important issue in their lives – the determination of the well-being of their children?
Drawing upon both my personal and professional experience, the latter as a commercial law partner and now full-time family lawyer (during the course of which, in addition to my own clients, I have spoken to many parents on a pro bono and second opinion basis), it is clear that the parents' overwhelming concern is that the application of legal skills alone leads to them experiencing acute feelings of disempowerment, disengagement, helplessness, not being listened to and paternalism. This experience has informed my opinion that the following approach is essential to addressing these client concerns:
- Taking a holistic approach to the client's needs beyond simply perceiving their case in terms of relevant fact and law for the purpose of "black and white" legal analysis based on legal precedent, since this has the effect of negating the uniqueness of each client's personal circumstances and family dynamic.
- Supporting the client emotionally and psychologically to ensure they feel listened to and their case articulated in a manner which emphasises their genuine child centric concerns. This minimises the risk that the client adopts a non-child centric position which frequently involves the prosecution of their legal case and interaction with the other parent containing a series of threats, allegations, denials and counter allegations, which inevitably causes great hostility, upset and resentment between the parents and the legal system.
- Developing and agreeing a plan of action with the client around a clearly defined strategy for communicating the parent's child centric concerns.
- Offering a level of service that reflects the client's emotional needs and allows for regular, open communication between client and lawyer whenever it is required by the client.
- Remaining focused on providing a "can-do" approach and solutions to any matter that the client wishes to include as part of his case, rather than a lawyer driven "I know best" approach which ultimately results in a sense of helplessness in the client. The established approach where lawyers repeatedly emphasise the risks of any given course of action without suggesting a possible alternative solution is not seen by clients as providing any added value to their case.
In achieving these aims, I have found it of fundamental importance to integrate my legal practice with that of those professionals who are solely focused on helping to identify, align and express the client's underlying beliefs, perception and concerns for the benefit of their legal case and to reduce anxiety and hostility that would otherwise generally occur. Based upon the success of this approach for my clients and me, it does seem peculiar that those professionals who are trained to have a greater insight than we, as the legal profession, into the human condition and, in particular, parental decision-making, are not more welcomed by family lawyers whose central concern is, by definition, the well-being of their clients.
The professionals to whom I refer are the various multidisciplinary "psychological" practitioners, such as psychiatrists, psychologists, psychotherapists, counsellors and any others with the appropriate skill set to articulate these matters and whose role it is to promote the emotional and psychological well-being of their clients. Historically, "psychological" professionals have not worked closely with lawyers in what, in my view, is an obvious area of co-operation, because they have been led to believe that their only function in family litigation is as a sole or jointly instructed court sanctioned expert. The infrequency of such instructions means that they are effectively excluded from any significant involvement in the family justice system. Secondly, lawyers and professionals of this type do not typically communicate effectively with each other due to their very different training and skill sets.
Lawyers are essentially advisers in the context of rigid rules, a recipe for "black and white" thinking. Conversely, psychological professionals, in assessing the possible processes and motivations behind an individual's decision making and behaviour, are skilled in identifying the underlying complexity of each individual and the circumstances that have led to them instructing their legal professional adviser. The absence of input from such psychological professionals, save in those cases where there is a specific psychological or psychiatric concern, is extremely unfortunate since family breakdown and post-separation parenting occur against the background of a large number of decisions made by the parents, stemming from their unique emotional and psychological make up. How, then, can lawyers and psychological professionals work together for the benefit of their mutual clients?
The following areas of cooperation are the main ones that my practice employs within our everyday interaction with our clients.
1. Developing and Communicating a Client's Case
From the client's first meeting with their solicitor, time pressure, the manner in which the solicitor elicits his instructions, the client's deep upset and the solicitor's limited understanding of the client's interpersonal difficulties and psychological processes which underpin their distress, automatically narrow the information base on which a case can be built. The value solicitors ascribe to legal precedent further narrows the case in the solicitor's mind to those facts which are consistent with or distinguishable from that precedent. There is a risk that the solicitor's early assessment of the prospects of success (usually expressed in terms of a percentage), viewed through this narrow focus and understandably couched in cautious terms, sets the client on a path of disillusionment, conditioned helplessness and increased anxiety and hostility, since he feels his case has already been pre-judged without the solicitor understanding what he or she regards as the unique aspects of it. Psychological professionals can greatly assist in ensuring that a client's case is formulated and presented to maximum effect through the inclusion of these unique features. Their ability to establish a good rapport, take a full case history of both the family breakdown and the contributory factors leading to it, as well as their expertise in managing the client's distress and facilitating open communication on very sensitive issues, greatly assists the solicitor to develop a holistic legal case which the client is more likely to believe accurately reflects their experience and position. Clients also find this process of great value as it frequently serves to give them additional insight into their own distress and why their relationship broke down, thereby enabling them to view the legal process more objectively and positively and to maintain their child centric position. Since an integral part of this approach is that the client develops a broader understanding of the decision making and behaviour of their former partner, we have found that it is much more likely that the parents achieve a consensual settlement through their unification behind the common goal of the best interests of the children.
2. The Role of Psychological Professionals in Supporting their Client
It is very stressful for any parent to be involved in family law litigation. This pressure may last many months or years. A client who cannot communicate their feelings at this anxious time or sinks into a spiral of pessimism, negativity or depression in response to the prospect of their loss and to their feelings of helplessness, is unlikely to be in the best frame of mind to conduct litigation, think flexibly or continue functioning in other aspects of their life. This will inevitably have a knock-on effect upon the child's well-being. Preserving the client's emotional and psychological well-being in these circumstances is best undertaken by a psychological professional who understands these issues. It is estimated that family breakdown directly affects approximately one-third of the United Kingdom population1 (and many more indirectly). Research from Families Need Fathers and the Equal Parenting Alliance provide a worrying insight. A survey of over 200 parents involved in the family justice system found that 35% of respondents had contemplated suicide, with a shocking 7% having actually attempted suicide. Clearly, this is an untenable situation that must be seriously addressed. In order to support their client effectively, it is necessary for the psychological professionals working in this forum to have a relevant understanding of the family justice system and for the solicitor to be aware of, at least basic, psychological principles, thereby facilitating a symbiotic relationship that truly reflects and caters for the client's needs.
3. The Psychological Professional's Role in Mediation
The Achilles heel of mediation is that, without the appropriate psychological awareness, the one thing that needs to be mediated – the client's negative beliefs systems relating to the separated co-parent – are not properly expressed or addressed. Without dealing with the underlying causes of that negativity, the parties cannot unify behind a common positive goal. Consequently, any attempt to mediate may feel like an attempt to force agreement on the parties and so result in as much polarisation and resistance as does litigation. By way of illustration, research undertaken by the Ministry of Justice in relation to longer-term outcomes of in-court mediation2 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.
4. Getting the Best from Court Appointed Experts
Due to their lack of mental health expertise, lawyers have great difficulty in effectively instructing court appointed psychiatric or psychological experts in terms that result in advice and opinion that best inform the court. Since, typically, an expert in the same field plays no part in the process of formulating the correct questions to the court appointed expert, there is a risk of the questions posed being too general and over simplistic. Mental health care professionals working closely with their mutual clients' legal team can play a vital role in ensuring that the court appointed expert is appropriately instructed and their reports interpreted beyond the purely clinical diagnosis. In this way, the inherent risk in such reports – that they are frequently the result of a very short involuntary clinical assessment where the risk of a negative report is uppermost in the parents' mind when being assessed, as opposed to a voluntary doctor-patient assessment – can be addressed by the drafting of instructions and questions to the court-appointed expert which contain an appropriate level of technical insight.
There is a (hopefully apocryphal) story of the family lawyer who says of a case that it must have been a fitting result because both parents were equally unhappy, the implication being that a child centric outcome has been reached in the face of two warring parents with polarised positions. Is it not in the parents' and child's interests that, whatever the result, the parties are able to acknowledge that their respective concerns and positions have been comprehensively communicated to the court and the impact on the child, in all its complexity, considered from an inter-disciplinary perspective, involving both psychological professionals and lawyers consistent with the fact that these, now, legal problems originate from human interaction and decision-making? Such an approach is surely more likely to reduce the animosity (that is otherwise likely to escalate) between the parents after the litigation has finished as both parents will feel that their case has been truly represented.
1 Every Family Matters, page 6.
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.