Family Law - Why be an expert only part of the time?

Following his article in Family Law Week (1) in which he argued for the greater use of non-legal skills in the family justice system, Richard Gregorian, family law solicitor, explains in more detail the practice model which enables psychiatrists, psychological strategists and other mental health care experts to have a far greater influence in determining the outcome of disputes involving children following marital or relationship breakdown whilst broadening their practice.

There are many aspects of the family justice system which attract criticism which neither the author nor readers of this article have any power to improve. These include court delays, insufficient funding by the government of “legal aid” cases, and the inadequate representation of children by CAFCASS as repeatedly highlighted by Ofsted.

Family lawyers must, however, accept their responsibility for the very significant levels of unhappiness which their clients frequently express regarding the manner in which parental disputes involving their children following relationship breakdown are resolved. It is too easy for family lawyers to dismiss their client's unhappiness with the service they provide as the result of their bitterness and upset at being subjected to public law interference in their private lives (particularly, if they have been unsuccessful in the litigation) being transferred to the nearest convenient target.

I do not accept many of the stereotypes used against family lawyers where they are based on the practitioners positively intending the negative consequences of their representation. Most commonly, the accusations are that family solicitors purposely manufacture delay and acrimony between the parents for personal financial benefit, or that they see nothing wrong in subordinating the interests of the children to their wish to win cases or that they create feelings of helplessness in their clients by displaying a lack of empathy and understanding of the uniqueness of their client's case and the basis of their clients’ genuinely held beliefs as to what outcome is in the best interests of their child.

I do, however, believe very strongly that the unwillingness of family lawyers to involve mental health care professionals more intimately in the service they provide to their clients contributes greatly to these outcomes and is a very significant reason for parents becoming increasingly frustrated and disillusioned with their own legal representation let alone those other individuals and agencies which they commonly feel are aligned against them.

The reason for this frustration and disillusionment with the client's own legal team is invariably because the client neither feels listened to nor understood. This is hardly surprising when at the very core of the parental dispute are not the niceties of legal precedent and procedure but human decision-making and interactional problems.

The effect of this practice model is also to marginalise mental health experts in resolving the dispute. Typically, the expert will be asked to prepare a report on one or more of the individuals many months after the dispute first arose before again losing contact with the case until required to attend court to answer questions on their report. Understandably, for many experts who followed their principal career path to assist individuals to resolve their problems objectively and holistically this method of working can be both frustrating and disengaging.

Accordingly, the involvement of mental health professionals from the very beginning of a case in:
• achieving a more objective and informed understanding of the "psychology" of the dispute and the individuals concerned through the taking of a full case history beyond the simple facts,

• thereby enabling the client's lawyer to formulate strategies to ensure that the parent’s concerns which underpin any negotiations, mediation or litigation are presented in the most objective and child centric way; and

• emotionally and psychologically supporting the client to ensure they are capable of viewing and participating in the legal process as an opportunity to act as an objective advocate for their child and gain awareness of the reasons for the family breakdown, rather than using the litigation to express their hostility or being prevented from doing so through feelings of anxiety, depression and negativity

is, in my view, a "no-brainer".

The most common complaint amongst clients of family law firms is that their solicitor approached the case in a legalistic way from the perspective of seeking only to acquire and utilise the core facts, provided they were consistent with legal precedent and seemed uninterested in the emotional and psychological factors which the client saw as the reason for the relationship breakdown and problems in post separation co-parenting. By adopting this solely legalistic approach, the client feels that the uniqueness and importance of the case to their legal team is diminished. The client is also exposed to the possibility that their case is run on too narrow a basis. Without such a holistic strategy, the client also runs the risk of being unable to give the judge an alternative child centred reality in which to believe rather than the usual stereotype of two warring parents who have both forgotten the interests of their children when all that exists are a series of allegations, denials and counter allegations from each parent.

This joint legal-psychological approach is one which I practise now. It satisfies a demand not only from clients and mental health practitioners alike but more widely from the political environment which increasingly sees family breakdown as being an issue of public health and in the context of its socio-economic consequences. The current alternatives and additions to full-blown litigation proposed by the family justice system, whether it be mediation, collaboration, or therapeutic support are not fully integrated since each can exist in isolation to the legal service.

The practice model to which I refer is one that:
• represents a fully integrated joint legal-psychological approach to family breakdown;

• does not depend upon any legal or policy changes to the present family justice system;

• involves mental health care practitioners not simply waiting for the next instruction from a lawyer but facilitates a transformation in the system by enabling them to offer This service to their existing or new clients. As with any force for change in the legal system it is driven by client demand;

• recognises and deals with the important issues of the mental health care professional transitioning from "objective therapist" to more (but not exclusively) subjective adviser, as well as the issues of confidentiality and consent;

• does not involve the mental health care professional acting as an expert or in any other court appointed or indeed "public" role so far as the court or any other party to the litigation is concerned. Neither will the mental health care professional be asked to openly question the work of another;

• would not be appropriate where the mental health care professional has acted for both parties as a counsellor, mediator or therapist because of the conflict of interest;

• would include child psychiatrists and child psychologists who have been instructed by one of the parents since whilst this joint legal-psychological approach is directed at the parent, it is eminently child centric;

• would not be available to publicly funded clients, where it is a view of many within the family justice system that the available resources impede even the effective legal representation of parents; and

• I hope in time will be "institutionalised" by those associations representing mental health care professionals, although the practice model does not depend upon it being so.

The Family Law Week article has generated considerable interest and support amongst the mental health care community who not only see an opportunity to change the system for the better but being facilitators in that change through an expansion in their own business.

(1) The article can be found at http://www.familylawweek.co.uk/site.aspx?i=ed52233

Richard Gregorian was formerly a commercial law partner in a leading London firm of solicitors. As a result of being involved in his own international matrimonial litigation, it became clear to him that the application of family law could benefit from both an understanding of human decision-making and behaviour as well as commercial law standards of client service. He used a joint legal-psychological approach in his own case to great effect with the assistance of Mr Gavin Emerson. He now practises in family law full-time using this approach i