Photo courtesy BBC
In an earlier posting – Parents in Care Proceedings -Parties or Witnesses, I raised the question of whether parents should have party status in cases involving their children. I also explored the success of Mediation Information and Assessment Meetings as a mechanism to moderate adult protagonists in private law family proceedings.
A number of readers have expressed a particular interest in these ramblings, and I feel the time is right to pull the ideas together into a tighter structure, so to progress the debate.
The premise was that, whether public or private law proceedings, frequently the competing and increasingly vociferous claims of parents, grandparents and other family members don’t promote – but often get in the way of justice for the child. Proceedings, where the flames are fanned by lawyers, fuelled by a jerry can of public funding, develop a life of their own – with the voice of the child getting lost in the melee.
I considered whether the voice of the adults should have such prominance. Should family cases be instigated as they are now, like civil cases, with a claim that brings parents as ‘applicants’ and ‘respondents’ in opposition? What is the real need for an adversarial process in family law? And what is the justification for using the public’s money to pay for such a potentially polemic process?
Important decisions are taken in relation to families. Some would say that they constitute the most important decisions next to the issue of depriving individuals of their liberty. This seems to be the main driver for retaining the adversarial process in family law. However, what we have ended up with is in fact a quasi-adversarial process, where roles are fudged, and the traditional adversarial approach is deprecated by the judges who have responsibility for it. Perhaps rightly, when you see first-hand what the conflict produces – attempts at manipulation, polarity, and a reluctance to compromise.
In a real child-centred system, you would not have a system where the competing claims and counter-claims of parents set the stage for a court hearing. You would substitute a process where the voice of the child was heard first and last, and the adult players gave their opinions as witnesses.
Of course such a process would require significant cultural and statutory changes. First, you would need a new mechanism in which, when an issue was raised that concerned a child, the child or children would be represented as a matter of course. The solicitor for the child would take charge of the case, contacting the parents or other witnesses with a view to taking statements from them. The child’s solicitor would share the various views and arrange a moderation meeting where appropriate. Whenever possible, out of court agreements would be forged. Where not possible, a judge would adjudicate on the basis of the evidence – oral and written – the parents attending simply as witnesses.
The children’s guardian and the guardian’s solicitor would have a paramount duty to the child, and to the court from whom they received their appointment. Clearly, there would be a need for oversight of their functions and role, but this could be provided by a professional body for guardians and, of course, the judge – who would have final case-management responsibility.
The blogger believes that many parents would be greatly relieved by such a change. On the whole, parents do not love the adversarial court process, and those that do should not dictate a system for those that do not. Furthermore, most parents do not relish the considerable cost of representation in a battle concerning their children. What they do want is someone to help them formulate a realistic position that has a chance of favour with a judge, the right to answer any concerns about their ability to parent, and the opportunity to be heard before a decision is made.
Whether represented by lawyers, or litigants in person – parents, grandparents and other family members make bad case managers. Solicitors representing both public law and private law clients sometimes fare little better and miss or avoid opportunities to re-direct their clients’ energies away from conflict into the constructive compromise that courts seek.
The downside of these radical ideas is that thousands of family lawyers would face a lean time. The plug pulled on the stream of public funding, and their role restricted to assisting parents as witnesses, the lawyers would no longer feature as visible players in the process. However, the public costs saved could be diverted to fund the guardian’s role, ensuring that public money is put where it will have the best advantage – to enable the interests of children to take centre stage.