Separating couples urged to avoid family courts by chief judge

Massive backlogs in family courts have led the president of the family division to write to separating couples in England and Wales urging them to consider other ways of resolving their issues.

In the letter to parents waiting for a hearing, Sir Andrew McFarlane stresses the damage that can be done to children by court proceedings, and asks couples to consider alternatives like mediation or parenting courses.

He cites research which shows that parental conflict is harmful to the brain development of children, and negatively impacts them emotionally.

The letter also reminds parents of the expectation to do what is best for their child, and their duty to communicate over the upbringing of their child.

Information is given in the letter on options outside of court for resolving issues.

Public cases involving a child and local authority are now taking longer than six months to reach court on average. Private cases involving care arrangements for children after parents divorce, are taking nearly a year to come to court. 

As of this March there were 635,000 outstanding cases in the family court, taking on average 47 weeks to reach a final order.

Lack of legal aid has added to delays, forcing more people to represent themselves in court, slowing down the process. For private law cases where parents are in disagreement, there has been limited legal aid since 2013.

Sir Andrew McFarlane said court should be the “last resort” for separating couples, as long as there are no domestic abuse protection or safeguarding issues.

Writing in a recent Judiciary UK blog post he said: “Many of us working in the system believe that resorting to the Family Court is not the best way for a child’s welfare arrangements to be determined in the event of parental disagreement. 

“At present the system is overloaded and inevitable delays in reaching a conclusion, which are obviously unwelcome, have the potential to make matters worse rather than better for a child. 

“But even if delay were not an issue, a system that pitches one parent against the other in an adversarial setting is likely to exacerbate more than it heals dysfunctional family relationships.”

Samantha Woodham, a specialist family law barrister told the Law Show on BBC Radio 4: “All of the research shows that what causes children emotional harm is exposure to inter parental conflict. And the court process in itself loads stress onto parents and creates (further) conflict.

“The best thing for families is never to end up anywhere near a court process. That is what has inspired changes to court rules and the letter from the president of the family division. 

“We need a mindset change on separation, rather than thinking court is the answer.”

Courts using the recently trialled Pathfinder Model are reporting improvements in the experience of families and earlier resolution, as it places the focus on problem-solving and hearing the voice of the child.

Sir McFarlane said: “Pathfinder has turned out to be more radical, and far more successful, than even its most ardent supporters would have anticipated.”