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Law - The limitations of litigation

The following passage is the key extract from the Court of Appeal judgement In re L (a Child) (19 June 2000) in which Lord Justice Thorpe addresses the problems of the family justice system.

The Limitations of Litigation
However there is in my opinion validity in questioning the future role of the family justice system in relation to contact. I have already expressed how limited is the capacity of the family justice system to produce good outcomes in disputed areas of personal relationship. Yet a great deal of the resources of the system are taken up with contested contact cases. The disputes are particularly prevalent and intractable. They consume a disproportionate quantity of private law judicial time.
The disputes are often driven by personality disorders, unresolved adult conflicts or egocentricity. These originating or contributing factors would generally be better treated therapeutically, where at least there would be some prospect of beneficial change, rather than given vent in the family justice system.

As Judge [....] pointed out in the case of [....] the issue that had consumed nearly £20,000 of public money in his court would have been more appropriately tried by an experienced bench of magistrates. I am in complete agreement with that view.

The family proceedings courts are a much under used resource in private law disputes, particularly in deciding disputed applications as to the duration or detail of contact. Equally in my opinion too much of the time of this court has been devoted to applications and appeals relating to contact orders either made or denied to which one party cannot adjust.

It needs to be recognised that a decision is essentially a discretionary evaluation of the welfare considerations. Since the commencement of the Children Act 1989 such decisions are restricted to benches and judges specifically trained and appointed for the task. The advent of much enhanced specialisation within the family justice system is an extremely significant development of the past decade and cases in which it can be said convincingly that the trial judge was plainly wrong in determining a contact dispute upon the application of the welfare principle must be rare indeed.

Another deficiency of the family justice system in relation to contact disputes is that it lacks any support services other than the aid of the court welfare officer in preparation for the final hearing. There is no qualified and experienced professional that the judge can request to implement arrangements, to work with the family or to search out and engage the absent and reluctant parent.

The shortcomings of the family assistance order are manifest. The court's capacity to resolve the challenge of what has been called the implacably hostile parent is evident. The practical difficulties posed by the power to commit are obvious. Treatment rather than imprisonment would seem more likely to succeed. However if it be unrealistic to question the continuing role of the family justice system in promoting post separation contact then I would express the hope that the newly created CAFCASS service be given a role to address those aspects of the fractured relationships that the court in the exercise of its statutory and inherent powers cannot approach.

Finally I would question whether the investment of public funds in litigation as the conventional mode of resolving contact disputes is comparatively productive. In many cases the same investment in therapeutic services might produce greater benefit. Within the NHS, Child and Mental Health Services work with warring parents to try and help them separate their parenting role from the breakdown of the partnership. If one parent has a mental illness or personality disorder the service can help the family to manage perhaps by providing sessions with the children to help them understand their situation.

Within the voluntary sector there are exceptional facilities, such as the Accord Centre in Brent, that provide more than neutral space for contact, and perhaps some professional supervision or assessment. Such centres attempt to address the underlying dysfunction in family relationship that expresses itself in the absence or failure of contact. In some cases they may work with the family therapeutically for weeks before attempting any direct contact. It must at least be arguable that that expenditure of effort and cost is likely to achieve more than an equal expenditure on litigation with its tendency to increase alienation through its adversarial emphasis.

Of course there will always be many cases that are only fit for referral to litigation. But in my opinion judges with responsibility for case management should be thoroughly informed as to available alternative services in the locality and astute in selecting the service best suited to promote the welfare of the child in each case.

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