Law - The limitations of litigation
The Limitations of Litigation
However there is in my opinion validity in questioning the
future role of the family justice system in relation to contact.
I have already expressed how limited is the capacity of the
family justice system to produce good outcomes in disputed
areas of personal relationship. Yet a great deal of the resources
of the system are taken up with contested contact cases. The
disputes are particularly prevalent and intractable. They
consume a disproportionate quantity of private law judicial
The disputes are often driven by personality disorders, unresolved
adult conflicts or egocentricity. These originating or contributing
factors would generally be better treated therapeutically,
where at least there would be some prospect of beneficial
change, rather than given vent in the family justice system.
As Judge [....] pointed out in the case of [....] the issue
that had consumed nearly £20,000 of public money in
his court would have been more appropriately tried by an experienced
bench of magistrates. I am in complete agreement with that
The family proceedings courts are a much under used resource
in private law disputes, particularly in deciding disputed
applications as to the duration or detail of contact. Equally
in my opinion too much of the time of this court has been
devoted to applications and appeals relating to contact orders
either made or denied to which one party cannot adjust.
It needs to be recognised that a decision is essentially a
discretionary evaluation of the welfare considerations. Since
the commencement of the Children Act 1989 such decisions are
restricted to benches and judges specifically trained and
appointed for the task. The advent of much enhanced specialisation
within the family justice system is an extremely significant
development of the past decade and cases in which it can be
said convincingly that the trial judge was plainly wrong in
determining a contact dispute upon the application of the
welfare principle must be rare indeed.
Another deficiency of the family justice system in relation
to contact disputes is that it lacks any support services
other than the aid of the court welfare officer in preparation
for the final hearing. There is no qualified and experienced
professional that the judge can request to implement arrangements,
to work with the family or to search out and engage the absent
and reluctant parent.
The shortcomings of the family assistance order are manifest.
The court's capacity to resolve the challenge of what has
been called the implacably hostile parent is evident. The
practical difficulties posed by the power to commit are obvious.
Treatment rather than imprisonment would seem more likely
to succeed. However if it be unrealistic to question the continuing
role of the family justice system in promoting post separation
contact then I would express the hope that the newly created
CAFCASS service be given a role to address those aspects of
the fractured relationships that the court in the exercise
of its statutory and inherent powers cannot approach.
Finally I would question whether the investment of public
funds in litigation as the conventional mode of resolving
contact disputes is comparatively productive. In many cases
the same investment in therapeutic services might produce
greater benefit. Within the NHS, Child and Mental Health Services
work with warring parents to try and help them separate their
parenting role from the breakdown of the partnership. If one
parent has a mental illness or personality disorder the service
can help the family to manage perhaps by providing sessions
with the children to help them understand their situation.
Within the voluntary sector there are exceptional facilities,
such as the Accord Centre in Brent, that provide more than
neutral space for contact, and perhaps some professional supervision
or assessment. Such centres attempt to address the underlying
dysfunction in family relationship that expresses itself in
the absence or failure of contact. In some cases they may
work with the family therapeutically for weeks before attempting
any direct contact. It must at least be arguable that that
expenditure of effort and cost is likely to achieve more than
an equal expenditure on litigation with its tendency to increase
alienation through its adversarial emphasis.
Of course there will always be many cases that are only fit
for referral to litigation. But in my opinion judges with
responsibility for case management should be thoroughly informed
as to available alternative services in the locality and astute
in selecting the service best suited to promote the welfare
of the child in each case.
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