Adversarial combat is an inappropriate methodology for deciding the fate of children who are the victims of family break-up. Get rid of the Family Courts and the supporting infrastructure. Replace it with a system that asserts equality between the parents and endeavours to find a win-win-win solution for the parents and the children.

Why is this idea important?

 

In the UK it is common for people, who have not had first hand experience of it, to believe that the Family Court system i.e. the system that deals with the allocation of residency and contact between children and their estranged parents, is fair. This blind faith is, unfortunately, totally ill-founded.

There is no evidence to show that either the father or the mother is more important in a child’s life. However there is plenty of evidence to show that both parents are important. I would assert that a child has a basic human right to know both his parents and I would also say that a parent has an inalienable right to parent their child.

Given this, how does the UK system measure up? There is no compulsory mediation system here. Parents who cannot agree can force one another to Court. This is an adversarial process with many players. Already, just by being an adversarial process, it is configured to create winners and losers. The notion of gentle negotiation, compromise and compassion is incompatible with this system.

Undoubtedly it is expensive. Undoubtedly a parent with legal aid can outperform the other and can bias the system in their favour. When this is combined with residency the bias to the non-resident parent can be overwhelming. Undoubtedly it serves to increase animosity and antagonism rather than reduce it.

The legal system is hugely biased to identify a resident parent and a non-resident parent. This is like a watershed. A small inequality, perhaps obtained by the parent who dishonestly takes the child while the other is out, can result in that parent assuming the role of the resident parent and, once that distinction is made, the resident parent can easily become the only parent.

There is no restorative balance in the UK system. No assumption of equality. No default obligation on the greedy parent to let the child have contact with the other parent. The marginalised parent has to fight an uphill battle with all the odds stacked against them to gain any access to the child whatsoever.

In the UK it is common for people to assert that the system must be fair. After all we have Family Courts, judges, social services, Cafcass, health visitors, child psychologists etc.. Unfortunately complexity does not equate with fairness and much of the potential for achieving a mutuality satisfactory outcome is obliterated by this arcane, biased and ineffective system. Some interesting statistics are that in over 90% of cases custody is awarded to mothers and that consequent to this 40% of fathers lose touch with their children.  The basic human rights of two out of the three players are violated by the current UK adversarial system.

How can the system be improved? The finer human qualities of compassion and compromise are incompatible with an adversarial system. Get rid of the family courts and all the  infrastructure. Put the money instead into a compulsory mediation system that adopts the initial stance of equality between the parents. The notion of winner and loser has to be replaced with concern for the other and compassion for the family as a whole and a willingness to compromise and be amenable to communicate. These are values that have been squeezed out of our society which seems to be crazed towards immediate self-gratification at the expense of all else. Especially with children and families we cannot afford not to re-educate people to be less selfish. The short and long term consequences to individuals and to society are too dire to do otherwise.

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