Does the Family Court exacerbate harm?

In his frank interview on BBC Radio 4’s Broadcasting House, Sir Andrew McFarlane, President of the Family Division, vented his frustration.  He invoked Philip Larkin, admitted the family court process likely harms children and said parents were kidding themselves if they thought their child was unaware of what was going on – living in between conflicting parents “does your head in.”

Image by Rod Long on Unsplashed

While not going so far as to say the family court was in crisis, he did state that resources were stretched to their limit.  In my opinion – they are stretched well beyond their limit.  How can we, as a society, continue to condone a system which we know is harmful to children? Does the family court process exacerbate the harm caused by a child’s exposure to conflict, domestic abuse or parents who are unable to meet their needs?

For the 20,669 children whose parent made a private law application between January and March this year, they can expect to wait, on average, 46 weeks for the court to reach a decision on a most fundamental aspect of their life. Yet this “average” belies a much more stark, dark reality for many children.  My colleagues and I work with children and families whose case has been in private family proceedings for nearer two or three years – or longer.  Their current case, that is.  Often, too often, these are repeat cases, the Orders made having failed to bring about resolution. The family return to court, repeatedly, often throughout the majority of the child’s life.

I have no reservation in saying, in my professional work, I have never seen a case where a child has not been additionally harmed by this ineffectual process.  McFarlane himself said that 80% of these cases come to court with concerns around child safety or abuse.  We know, when that application is made, a child is likely being harmed. The early action, or inaction, of the court compounds the harm to that child.  In far too many cases there is no early consideration of evidence of any alleged harm. The child is left exposed to the probablility of abuse, conflict or harmful parenting, or their separation from a parent who may provide good enough, nurturing care is upheld or endorsed.

 The President confirmed the current pilot schemes’ aims to address these and other concerns and to support parents to focus their lens on the impact on their child.  But is it time for a more radical approach?  What is the purpose of this private family law process in England and Wales? A system which requires one parent to take another parent to court if they have concerns over safety or well-being? A system in which two parents, usually with parental responsibility, equal in the eyes of the law, are encouraged to engage in battle and blame? A system which is not fit for purpose and actively harms those that it seeks to help? 

As Sir Andrew quite rightly said – these are relationship or safeguarding issues.  We already have a system which has statutory responsibility for safeguarding. Should the first port of call be referral to a better resourced safeguarding system which can provide the safety, support and supervision needed?  And as for relationship support? The Family Solutions Group recommended networks of “family professionals” including therapists, parenting specialists, mediators and legal services to support parents in problem-solving to meet their children’s changing needs post-separation. 

Instead of tinkering around the edges, perhaps we should abolish the private family system altogether?