The Flaws in Family Law

After many years of practising family law, my main regret is that, as I represented clients (universally successfully), I did not keep a list of all of those victories we had at every stage, which were nothing to do with the final outcome or the facts or the law but rather exploiting and, thereby, proving the deficiencies in the system.  In this day and age of blogs/vlogs and advisory notes at the top of articles, stating how long it will take to read them, I will bullet point some of the main issues.

• Those who operate the family justice system, either do not have any training in the subject matter of their caseload or do not have all of the necessary skill sets. The family justice system is the envelope for resolving problems relating to people, including children. Family lawyers have no training in the non-legal issues which are required to properly represent family law clients: mainly, communication and conflict resolution, child welfare, issues of coparenting and mental health, the “psychology” of the individuals and of the dispute between them.  After all, the spouses, partners, parents who use the system met, had a relationship/marriage, separated and became embroiled in escalating conflict, completely separate from any legal background or issue.  If you do not understand these non-legal issues, you cannot fully understand the individuals, the case, the dispute between them and how to resolve it or communicate the correct narrative to the court.  Instead, legal professionals use superficial facts to try to out- prove the other side.  However, as they say, “if you point a finger of blame in one direction, three fingers are pointing backwards” (metaphorically and anatomically). Cafcass/social workers do not have mental health or conflict resolution skills.  Court-appointed mental health professionals are completely foxed because conflict can very much look like mental health e.g. lack of insight, empathy and responsibility, black-and-white thinking, high levels of anxiety et cetera.  As a firm, we have all three circles of the Venn diagram operating at the same time a fully integrated approach for clients, which we refer to as a joint legal and psychological approach i.e. an expertise in family law, mental health and communication and conflict resolution.  This means that we see cases entirely differently.  After all, what is most important to understand is the “psychology” of the individuals and the dispute between them.  It not only neutralises the blaming strategy of the other side but takes the legal and other professionals into other areas of skill set (or a combination of skill sets), which they do not have.

• There is an absence of consistency. The system is full of opinions and blame, where there are at least two sides or two interpretations of any given fact, in any event. With new clients, who are initially predisposed to blame the other side on the basis of facts, I show them how quickly I can reinterpret and neutralise their blame.  That does not always involve simply taking the other side of an argument.  It is the product of seeing “beyond the facts” in the way we do because the case is being screened through at least three prisms of expertise, not one.  As they say if you have a hammer, you see every problem as a nail.  In the context of the family justice system, that means that family lawyers/judges form opinions on the basis of blame and support that view with confirmation bias.  That makes them vulnerable, not only to the reality that every fact, dispute or allegation, has at least two interpretations but to truisms and axioms of conflict resolution, mental health, child welfare, and coparenting, where there is no scope for differing opinions. 

• The lack of conflict resolution training means that legal professionals, even judges, get caught by their clients’ dispute. Family lawyers do make matters worse because, having only a hammer, they see every problem as a nail. In this context the hammer and nail relate to their propensity to blame and undermine the opposition, in the mistaken belief that what they are alleging, it cannot be turned around 180° on them, so they blame some more and so on.  It means that judges and Cafcass can often depart from common sense, empathy and child/mental health centricity, where they feel exposed through a lack of skill set e.g. minimising the involvement of mental health professionals because they lack confidence in the issues and cannot control the process.  This is most often seen where mental health symptomology is incorrectly treated as fact-finding fodder.

• Mediation is not the panacea that others thought it to be. I have never had any confidence in it at all. After all, what is a legally qualified mediator going to do to resolve the underlying entrenched conflict between the parties, which has been escalating for years prior to their separation.  Even worse, as mediation is seen as the last chance saloon, prior to litigation, it’s inevitable failure can encourage it.  I am reassured that the mediation section of children and finance application forms now explicitly state that litigation can be commenced at the same time as mediation.  Whatever the public reason for that e.g. delays in the courts, it is also recognition of the fact that mediation does not work either at all or in the long-term where there are disputes because it cannot resolve them.  To make mediation successful and to de-escalate the chances of it failing, one needs to understand and implement principles of communication, negotiation and conflict resolution which we do on behalf of clients.

• The instruction of mental health professionals as court-appointed experts. Quite simply, one can neither properly instruct nor ask written questions or cross examination questions where there is a difference in skill set i.e. lawyers instructing/seeking to communicate with mental health professionals. Court-appointed experts can only answer what they are asked and so are limited by the knowledge of the legal professionals.  As they say, rubbish in rubbish out.  You need to have experience in both mental health and conflict resolution in order to obtain a proper opinion.  After all, a person’s mental health may be entirely separate from why they are in dispute and acting the way they are and people are more than their mental health in any event.  What is required is the three underlying skill sets (law, mental health and conflict resolution) in order to go beyond the facts or diagnosis.  Quite often, we will use court-appointed mental health professionals to prove other non-legal aspects of our case because mental health professionals will see things differently from the lawyers, not just the extent of giving clinical diagnoses.

The way that Gregorian Emerson Family Law Solicitors, use their combined expertise for the benefit of their clients is more easily demonstrated with respect to specific cases, so please get in contact with us.