Is it realistic for parents to expect the Family Courts to offer meaningful help and support for those families who are experiencing the distress of their separation or divorce?
There are several important points worth considering regardless of whether you’re the parent applying to court for an order about the care arrangements for your children or you are the parent defending the proceedings.
At Kids Come First the overwhelming majority of parents we meet describe their experience of the court system, past or present, as a negative one.
Some comments we’ve noted are:
Separating parents should recognise and appreciate that in bringing family matters before the family courts, they are, in essence, relinquishing ‘control’ of their family’s future and thereby reducing their capacity to resolve their own parental issues. By handing over parental ‘power’ to a judicial system that is adversarial and combative in style, there is a real risk that the process may only inflame the already delicate situation, and very likely escalate the conflict between you to an all-time high.
This conflict will not only take its toll on you personally in terms of emotional energy, financial cost and valuable time, but, as parents, it will reduce greatly your capacity to support your children as you focus on all the legal proceedings. And it will impact on your children more than you can ever imagine. As they become increasingly aware of the ‘war’ being waged between you, they will struggle to find the resilience they need to adapt and deal with your separation.
Ultimately, the longer the conflict continues, the less they will feel able to express their thoughts and feelings and the more they will end up feeling lost, confused, isolated and abandoned.
In some cases, one or both parents begin to ‘paint’ an entirely disapproving picture of the other in an attempt to discredit them. Some will make it their ‘mission’ to gather as much antagonistic information as possible, negatively ‘profiling’ their ex as the ‘enemy’, in the belief that it will help ‘build a case’ in their favour.
There is often a desperate, emotionally-driven need to feel vindicated in the court arena (a wholly unrealistic expectation) and an overwhelming desire to engage in acrimonious ‘blame-game’ behaviour.
All too often, an intractable and long-lasting dispute will arise as a direct result of allegations and accusations and, naturally, the court then has a duty to investigate these matters in protecting and safe-guarding children.
Sadly, these are often strategies intentionally employed by a parent in order to withhold access or restrict contact with children. Ultimately, this only serves to encourage increased suspicion and parental mistrust, thereby putting an end to all parental communications and collaboration. It’s a highly destructive approach to dealing with what is an already very fragile system (your family) somewhat like driving a giant steamroller over a tiny ‘sensitive seedling’ (your child).
And in time, any malicious attempts to discredit, diminish or devalue the other parent may ultimately backfire as it is your children who will make their own observations and judgements about how you treat each other.
Whilst it is both recommended and essential to fully understand your legal rights and entitlements, parents should bear in mind that solicitors fight solely for their clients. In this respect any legal advice you receive does not necessarily take into account the needs of the whole family. For this reason it’s important to choose your legal counsel wisely and, where possible, seek out a collaborative lawyer whose code of conduct is to do all they can to minimise the conflict.
Remember, you are paying for a service so the choice is yours. If you are dissatisfied with the advice you receive – go elsewhere.
And if recommended to go to court, think carefully and prepare well before entering a system that is highly likely to leave you mentally exhausted, financially depleted and emotionally battered.
Court resources are increasingly sparse in the current Covid climate. The immense backlog in cases continues to increase with over 120,000 divorces in 2020. Long delays are now to be expected and it may be many months or even years before you have a resolution to your case.
There is also no such thing as reasonably priced litigation: it costs money, and if you have a figure in your head – triple it and you’ll have some idea of just how much you’ll be out of pocket at the end of the process. It’s worth bearing in mind all the potential benefits of saving your precious financial resources for starting your ‘new life’ and your children’s futures.
The traditional contentious litigation process seems increasingly outdated. The !true’ purpose of family courts is in assisting a parent who is being denied contact with their child without just cause (no safeguarding issues apply). Sadly, this is representative of very few applications issued and excessive court time is taken up with matters that parents should be capable of sorting out themselves.
The key is opening up child-focused dialogue – whether directly or in an alternative process such as mediation, collaboration or arbitration.
With so many options now available, there is no good reason for separating parents not to seek out the specialist support they will benefit from. By making effective use of the expert guidance and innovative co-parenting ‘tools’ available, they can drive their separation/divorce down a far gentler path.
It’s not surprising then that family courts cannot always be expected to come to the rescue of a family who find themselves ‘shipwrecked’ out on an ‘emotional sea” of hurt, anger and despair. Judges are often required to make monumental decisions for the families they deal with, sometimes having only met the parents briefly and, in most cases, never even having met the children. How can they realistically be expected to satisfy the unique and detailed requirements of families whose lives they have little or no knowledge of?
Often the outcome is a ‘lottery’.
Rather than achieving a ‘win-win’ solution for all, the impossible position of the court inevitably produces a ‘lose-lose’ result which then only generates further resentment
rather than fostering vital future collaboration. The courts can be very effective but cannot be the “fixer” of all problems.
Family situations and dynamics vary so greatly these days and everyone’s situation is unique.
By diminishing your own decision- making capacity as parents and blaming each other, you could find yourself unpleasantly surprised at the outcome.
Kids Come First offer bespoke specialist support & child-focused training workshops for separated parents at every stage of the process.
Our partners at Scullion LAW advise clients to try to avoid going to Court if at all possible: “One option is that you instruct solicitors as does your former partner, to resolve matters on your behalf. We could propose that your former partner and his or her solicitor come to a joint meeting with you and your solicitor to discuss the issues between you to see whether we can resolve matters that way. This is called a “without prejudice” meeting and can often help to improve communication between you and your former partner. Whatever is said within such a meeting cannot be relied upon in Court.
Only if alternative approaches such as joint meetings, collaboration or mediation have proved to be unsuccessful or inappropriate would we advise you to proceed to court. This is important in terms of what the court expects parents to undertake prior to raising any court action and also to protect you from any award of expenses which could be made by your former partner against you on the basis that you raised an action prematurely.
Our view, and that of the courts, is that parents should resolve disputed matters if possible, amicably and by negotiation.
Our experience has shown us that the courts are disinclined to be involved in the quantity of contact rather than the principle of contact. When an action is raised at court then the court is in charge of the progression of the case. You and us as your solicitors, no longer have control of how matters are directed.
There is also the element of significant legal costs to consider.
It is up to the particular discretion of the sheriff who has been allocated your case how they decide matters. It is also important to keep in mind that the sheriff may impose a court order which neither you nor your former partner may be happy with. Any appeal against a decision of the sheriff will be difficult and our experience has shown is unlikely to be upheld upon appeal.”
To contact the experienced Family Lawyers at Scullion LAW for advice on any Scottish family law issue call 0141 374 2121 or email firstname.lastname@example.org
Thank you for taking the time to read this post.
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