Family solutions group calls for child-centred approach away from the courts

A report from the family solutions group (FSG) makes sweeping recommendations including the creation of a support framework for children and young people whose parents separate. 

The FSG is a subgroup of the private law working group formed earlier this year to focus on improving the experiences of separating families away from the family court system.

The report’s central theme is that the child’s long-term welfare and their rights are placed more firmly at the centre of the family justice, whereas the current processes for issue resolution (in or out of court) tends to operate largely for parents.

It also wants to see the introduction of a presumption that all children and young people aged 10 and above be heard in all issue-resolution processes outside of the courtroom.

However, the report recognises that some families do need family court intervention and suggests two possible ‘pathways’: 

• The safety pathway – for those needing safety to be immediately signposted to appropriate legal and other support.
• The cooperative parenting pathway – where parents can be supported in understanding the child’s long-term needs and offered options for resolving issues with the other parent.

Karen Barham, a consultant at Moore Barlow and FSG member said the current system is failing many children and their parents, which affects society as a whole.    

She explains: “Too many parents who separate on difficult terms expect to fight over their competing ‘rights’, rather than cooperate over their shared ‘responsibilities’… We need to shift what are seen as ‘custody battles’ into long term goals of cooperative parenting.”

“A ‘justice system’ response to parenting disagreements is a blunt instrument for a family going through family breakdown”, she commented.

“The adversarial nature of a justice system may only add fuel to the fire, increasing stress and conflict within the family.”

She said society must protect children and restore their needs and rights as central in any disagreement between parents.  

Further key recommendations set out in the report include:  

• A policy response involving a coordinated, joined-up approach across government departments to tackle the financial and human cost of family breakdown.
• Changing the cultural response to separation.  
• Putting the rights and needs of children at the centre of any parental separation, with a proposed presumption giving children age 10 and abovee the opportunity to have their voices heard.
• Mandatory core training to ensure greater understanding within the legal profession about the effects of parental conflict on children and relationship dynamics generally.
• A new Part 3 Protocol with ‘teeth’ to help the court to encourage and facilitate out of court processes 

President of the family division, Sir Andrew McFarlane, called the report “an important and impressive document”, and said it “brings together the various lines of thinking of recent years aimed at finding a better way to achieve good co-parenting between separated parents”. 

He commented: “It is thought that about 40% of all separating parents bring issues about their children’s care to the family court for determination, rather than exercising parental responsibility and sorting problems out themselves.

“This figure is both startling and worrying. 

“Where there are no issues of domestic abuse or child protection, parents ought to be able, or encouraged, to make arrangements for their own child, rather than come to a court of law and a judge to resolve the issues.”

He said the number of such private law applications is increasing. 

“The trend is”, added Sir McFarlane, “that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be in all cases where domestic abuse or child protection are not an issue.”

He said any major change requires widespread engagement and support