Children litigation: When the System Becomes the Problem

Director James Pirrie reflects on the family justice system in light of the proposals of the Surrey Initiative. 

I remember Sir Nicholas Wall, former President of the Family Division, sharing a word that meant “the system set up to solve the problem actually is the problem”.  He was using it to reference his fears for the family justice system.

And I would love to find that word again so much. It would enable me to describe a problem and a need for change in half the time I am already taking.

A few years back, you went to court with a lawyer. Yet now the “litigant in person” phenomenon has burgeoned and with it the use made of the family courts:

• On the one hand, there is not the brake of ruinous costs to hold people back from running their case through the courts;
• And on the other, there is not the legal professional guiding the litigation-enthusiast towards the better ways to get faster, higher quality solutions without causing such family relationship damage, such as exist in mediation.

Our courts are buckling under the burdens placed upon them with increasing talk being:

• That courts will be available to deal with cases of personal safety only;
• But not to address cases merely of parental disagreement.

It is easy to think of the court as the pinnacle of the family separation process: whilst many cases start, the idea is that most fall out along the way and only a minority actually reach the courtroom for a final hearing. However it is more appropriate to recognise the judge’s role as one part of a complex system. And unfortunately because the judge will be laser-focused on the interests of the child in the case before them, what can get lost is the implications for the wider system beyond the court doors. Each time that the court fudges principle to make things work out for the family in front of the court, there are implications for the separating population, those other families outside the court or trudging their slow way towards it.

I have always been an advocate for costs orders – individuals should only be at court for clear cases, to secure clear rights and address clear injustice, behaviour, risk or need. And if we are right, we should have our costs paid and if we got it wrong … well then surely the bill needs to be put on our tab instead. The judiciary finds that hard – it creates tough outcomes for some litigants who did not get it completely wrong or for whom the situation was not perhaps quite so clear so early or where the results of a costs award will upset the careful calculations in the needs-crafted settlement.

But surely the legal system must make its mind up – it is binary …

• either you have consequences in litigation which operate as a disincentive to use the court save in the clear case and which encourages the use of Dispute Resolution alternatives
• or you adopt an approach of massaging away the tough edges of harsh outcomes for some and that throws the doors wide open to those who see the chance of litigation with few (they think) consequences ….

There are of course consequences – often hidden below the surface:

• Whilst parents litigate over children, the childhoods they are seeking to put right are passing;
• In the cases they present, they can adopt rigid and positional thinking which persists as a wound when the outcome falls short of this; and
• in the thrust and parry of litigation the relationship of trust and communication (which other processes such as mediation seek to repair) is often further damaged.

So far as children are concerned, there is so often one parent whose case is assisted by the status quo and one parent seeking to change it.

Back to that missing word of Sir Nicholas Wall, the system is the problem: court is slowest of all the processes; little wonder that one side or the other finds the advantage of refuge in it. Mediation, hybrid mediation or arbitration over children issues is often available within days … that will often be of great benefit to one side and a strategic challenge to the other. Until the court is prepared to condemn (in the orders it makes, in particular about the costs of the process) parties who choose to use it, the court cannot expect the numbers crowding out the court to reduce to levels that it can manage.

It is why we have welcomed Karen Barham’s “Surrey Initiative” as the procedural encouragement to step away from court and into more family-friendly ways of solving impasse. Costs orders for “mere disagreement” cases would bring the situation properly under control.