The review of the Family Justice System which was conceived under the outgoing Labour administration, is currently underway, chaired by David Norgrove. The review is seeking to examine the strengths and the failings of a system which seeks to intervene in the private and often very messy lives of families in the UK. The Family Justice System has long been criticised and the review of its workings is long overdue. If it is to have any success in terms of bringing about change for families affected by separation however, it is going to have to seek better remedies for family conflict than those currently available. Because it is often the services that purport to offer resolution for families that create the kind of conflict that can damage and destroy relationships between parents and their children.
Take family mediation for example, a service which is widely lauded as being the sticking plaster that will hold together families in conflict. Family mediation is a service which is available across the UK and which has been delivering less than spectacular outcomes for separated families for many years. Research findings, commissioned by the Department for Constitutional Affairs and published in 2004 by Janet Walker from Newcastle University1 showed that;
‘Most people attending mediation did not feel that it had helped to make divorce less distressing or that it had helped them to improve communication, share decision-making about parenting, reduce conflict or avoid going to court.’
Subsequent studies have similar outcomes, leading one researcher to comment;
‘Facilitation and encouragement together with selective and appropriate pressure are likely to be more effective and possibly more efficient than blanket coercion to mediate’. 2
and yet increasingly, when family separation is mentioned, there appears to be a consensus that all that needs to happen is that more people need to use family mediation.
Family mediation does not work for many families. If it did, the queue to use the family justice system would be non existent. Instead the burden upon the system is growing as the queues lengthen. Family mediation is not the panacea that many proclaim it to be.
Family Mediation works when it is delivered properly (which means impartially) and can offer parents who are ready to talk, the opportunity to try and reach an agreement together. Too often however, family mediation is not delivered properly as mediators delivering it, turn out not to be quite as impartial as they would like us to believe. Mediators are not magicians, they are people who have life experience, opinions and privately held beliefs about the world around them. Mediators, unless they are highly aware of those privately held beliefs and attitudes, can often ‘leak’ these assumptions through to the people that they work with. Mediation, when it is not delivered properly, fails parents who are separating, often because the mediator’s own ideas about what should happen after family separation drives the delivery.
Mediation is a powerful intervention for separating families, but only when it is delivered properly and only as part of range of interventions that parents and children need if they are to manage the transition that is family separation successfully. Too many parents are pushed into mediation too soon, when the grief, distress and anger are high and the likelihood of being able to sit down and have a reasonable conversation is virtually nil. Over time, with support, these same parents can find a way of talking together about the important things, but only if they have each been able to offload some of those high levels of distress that are a feature of the landscape of family separation. Mediation, at the wrong time, can simply entrench the suffering that parents experience, or far worse, can escalate conflict and harden attitudes.
The UK lags far behind its european counterparts in terms of how it treats families who separate. Until very recently, the idea that children suffer when parents part was summarily dismissed in the UK by policy makers and service providers alike. The theme until recent times has been upon parental experience of family separation, the focus being upon lone parents and fathers rights. Only now is the UK starting to make the link between family separation and the impact it has upon the well being of our children.
In Sweden, mothers and fathers are expected to each take a share of the caring and providing responsibilities for children and this is supported by the state. In Norway, whilst children are often living in one home, there is a high degree of time spent with the other parent and an expectation, set out by the state, that each parent will continue to provide for their children. This expectation, set out in legislation and supported by services made available to both parents, encourages them to think differently about their roles after separation. In the UK, the expectation, legislation and services are all configured around the lone parent model of one parent as carer and the other as provider and the conversation about family separation, is focused way back in time in the 1950’s. The family justice review therefore has the chance of bringing the UK right into the twenty first century, but only if it has the courage to look for new routes and remedies.
There is a saying which goes something along the lines of ‘if you always do what you have always done, you will always get what you have always got.’ The approach to supporting separated families in the UK reminds me very much of this. The family justice system in the UK is a mess and the services that are supposed to support families, often end up making it worse. Instead of recognising this however, UK policy makers tend to rely upon the same old tired and divisive approaches to supporting separated families. Whilst there are some excellent services to parents out there, these are often underfunded and unrecognised, whilst the services that have so spectacularly failed parents in the past continue to receive huge amounts of funding from government. When will we learn that the problem of family separation in the UK is not going to be solved by throwing more money at the same services that have contributed to the problem in the first place? If we want a different outcome for our separated families and the children who live in them, we have to do something different at the start. And doing something different at the start means having the courage to consider what is really happening to families when they begin to fragment and separate.
Family separation is a messy and complicated business, it is not something that happens overnight and it doesn’t simply stop being painful and difficult just because the physical separation has happened. Family separation causes emotional pain and suffering, not only to parents but to children too and the scars from this can last a lifetime. Far from being an advocate for staying married for the sake of the children, my view is that if parents are going to separate, then we should be helping them to recognise the impact of this upon their children. Far too many children come into my clinic, obviously deeply affected by what is happening in their family, whilst parents assure me that they are fine. When I point out that a child looks and sounds far from fine in my opinion, parents are often relieved and very willing to listen and learn about how they can help. This is not about judging parents, repairing marriages or mediating between two people who are hurting, it is about refocusing parents upon their children’s needs and helping them to support their children at a critical time in their lives. Its about listening to children but making sure that they are not made responsible for choices about relationships with parents, and its about making sure that parents who are separating have the skills that they need to keep on being the adults in the family.
New approaches to supporting separated families are long overdue in the UK and urgently needed if the family justice system is to avoid collapsing in upon itself. There is a wealth of evidence to show that setting out an expectation of parents in legislation and reform of support to separating families, can bring about much improved outcomes for families and particularly for children. The very worst thing that David Norgrove could do would be to preside over the missed opportunity to bring about these changes and put his faith in the red herring that is mediation. The UK needs a programme of reform of the family justice system and of the services that support separated families across the UK. Providing more of the same will simply prove disastrous and will condemn another generation or more of children to the misery that has been inflicted in the past.
1Picking Up The Pieces: Marriage and Divorce Two Years After Information Provision” DCA 2004
2Twisting arms: court referred and court linked mediation under judicial pressure.’ Hazel Genn, MOJ May 2007