Posted on | June 10, 2012 | 16 Comments
This is a guest blog post written by Stephen Twist, family barrister and blogger.
NB Stephen has asked for me to host this post, which I am happy to do, in order to stimulate debate. I plan in due course to post a reply to it, but in the meantime comments are welcome and encouraged on this post from professionals and parents.
Going to court for a dispute involving your children is worse than accepting an invitation from Jeremy Kyle. You should have sat down quietly together and sorted it. Instead you go for broke and destroy your last bit of dignity in a courtroom drama?
If anyone was to invent a process that was better designed to fan the flames of conflict and humiliate the protagonists, they would be hard pushed to beat the ‘family court system’. Take two people who are at loggerheads, a judge who has better things to do, bring in two lawyers with their jerry cans of publicly funded petrol, strike a match and you’re sure of a big blaze. If publicly funded the taxpayer gets to pay for your day in court, and if you are not sponsored by the public purse, you can also add in a huge bill for all the damage that you both sow and reap.
For over thirty years I have played my part as a barrister in these cases. Often, there are no winners. The adults leave court with the compromise they could or should have agreed many months before, and the children pick up the emotional tab of the conflict.
In my previous blogs I have explored the role of mediation to tame the tempest. Those who want to glance back on my ‘mediation musings’ are free to do so. But in this blog, I want to explore the question of why we allow (and frequently require) the adult players to be the drivers of litigation concerning their children.
The Children Act 1989 was intended to put the child or children first. Maybe it did, but the legislators did not seize the uncomfortable stinging nettle of who manages the competing claims. Then, the adversarial system was still in full flight, even in children cases, and family advocates were rated on being a “good fighter”, “doughty opponent”, or “a determined advocate”. It would have been unconscionable to remove from parents their cherished ‘party status’ through which they could both commence proceedings and seek to control them as litigators.
Now the climate has changed. The courts have felt the effect of global warming and frequently turn on the air conditioning, or even the sprinklers to cool the temperature of conflict. So, isn’t now the right time to take that extra step and withdraw party status from the protagonists?
I envisage a system where, when an issue arises in relation to the care or management of a child, the court is notified, and decides if a ‘children’s guardian’ should be appointed. This first step would be the norm, and the guardian would mediate between the parties, aiming for the middle ground that is so often adored by judges. Where agreement was not possible, the guardian’s solicitor, owing an equal duty to the child and the court, would take over the whole case management. One of their tasks would be to obtain statements from the parents setting out their concerns, positions and requests. Like any other witness, the parents /grandparents /extended family members would remain witnesses, having a right to have their voice heard but not to manage and control the case. Only in public law cases where serious allegations were made against a parent would the question of party status arise.
Of course, we would have to move away from the adversarial process, and that would require cultural and legislative changes. We would also need proper funding of guardians and their solicitors, but the blogger senses that the replicated costs of party status for parents would probably pay for a pretty good service. The requirements of efficiency and institutional functionality would probably rule out CAFCASS, but with a large pool of funded, professionally regulated, independent guardians, that should be no problem. This blogger does not envisage difficulties with Convention articles 6 or 8. He sees the change as a timely and necessary step on the road to managing both public and private law issues competently and proportionately, keeping the child on centre stage.
But what about the poor lawyers who would lose work? Yes, you have a point there. Perhaps the blogger should re-think his proposals to keep himself and Lucy (Pink Tape) in a job?