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In a comprehensive recent report titled; ‘“What About Me?” Reframing Support following Parental Separation’, the Family Solutions Group (FSG) recommends a shift away from adversarial family proceedings, to a child-centred, holistic approach to family separation.
Whilst the Family Justice Implementation Group has been tasked with developing proposals for the long-term overhaul of a family justice system that is regarded as being ‘in crisis’, the FSG was established in January 2020 for the purposes of considering what can be done now to address key issues.
The FSG’s report celebrates the legacy of the Children’s Act 1989 which did away with the problematic idea of ‘child custody’ and introduced the concept of ‘parental responsibility’. Parental responsibility bestows on parents an equal set of rights and responsibilities in relation to how a child is cared for. Importantly, this stops children in family proceedings being viewed as property to be fought over. Parents must instead focus on how a child’s needs can best be met following a relationship breakdown.
Nevertheless, the FSG laments that much of the Children Act’s potential remains untapped. Separating couples still overwhelmingly perceive childcare as a ‘legal matter’ that must be decided by a court. Although matters where there are safety issues do necessitate court intervention, circumstances which do not feature such challenges are often worsened by the adversarial nature of court proceedings.
Whilst there is an assortment of mediation and other out of court options designed to help families resolve disputes, these are too often poorly signposted and poorly resourced. Indeed, the lack of concise information about these options means they are frequently misunderstood as being less effective than issuing time-consuming and costly court proceedings.
In order to begin remedying these problems, the FSG has proposed a raft of measures targeted at every level of society. We discuss some of these below.
The FSG recommend that central government follow in the steps of their Welsh counterparts and develop a department at national level for England which is dedicated to children and the family. This would act as a tacit acknowledgement that family law issues are multi-faceted and require a more nuanced approach to providing access to justice. Presently, civil, criminal and family law issues are all funnelled through the Ministry of Justice.
The FSG endorse a campaign which will deliver a coherent message that it is a child’s right to enjoy a relationship with both of their parents. Moreover, any educative materials should be couched in terms that emphasise child welfare as opposed to ‘justice language.’
The FSG has suggested that any campaign would be augmented by an authoritative website to act as a single touchpoint for anyone seeking support and guidance on family matters. Having one recognised authority that is available to the public would help dispel some of the misconceptions that have built up around family justice issues.
A holistic approach
This is a nod towards the ‘collaborative law’ approach that some practitioners have already begun to adopt. Rather than seeing family separation as a standalone legal matter, the holistic approach that the FSG advocate takes a broader view on the legal, emotional and relational issues that are wrapped up in family proceedings.
The FSG indicate that offering a bundle of legal, mediation and counselling services would make for a more joined-up approach to not just dealing with legal matters but addressing family breakdown issues in the round. The FSG believe that the flexibility of a holistic approach will address the bigger picture issues that arise on separation and, ultimately, lead to more effective co-parenting in the future.
At Anthony Collins Solicitors we welcome the FSG’s proposals for a shift away from hostile court proceedings to a holistic approach that firmly champions the needs of children. In our experience, when parties take Alternative Dispute Resolution seriously and, in particular, approach mediation pragmatically, they are better placed to achieve outcomes without the drain on money, time and emotion that court proceedings often entail.
We have also seen that when childcare outcomes are achieved without court intervention, the parties’ relationship stands a better chance of remaining intact. This consequently paves the way to more workable long-term arrangements where separated parties co-parent effectively, as opposed to projecting their antipathy towards each other onto the children.
Invariably, the FSG’s proposals would be costly and it would take time to address the underlying attitudes and misconceptions that have built up around family proceedings. There is also no escaping the reality that family breakdown is painful for all involved and, at best, reforms will mitigate rather than heal the upset that breakdown creates.
We also question the reality of how deliverable some of the FSG proposals are in the current political climate. Indeed, the cocktail of Brexit, the Covid-19 pandemic and navigating the impact of these on the UK economy, surely means there is currently little appetite to restructure the UK’s macro approach to families and childcare.
The FSG’s proposals are nevertheless innovative and provide food for thought to all involved with family law and policy. Indeed, we view the imminent passing into law of the ‘No-Fault Divorce’ Bill as in keeping with the less adversarial approach endorsed by the FSG and a welcome step towards a more compassionate approach to family law matters.
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