Why family therapists and family law solicitors should no longer be inhabiting parallel universes

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 family therapists to have a far greater influence in determining the outcome of disputes involving children following marital or relationship breakdown whilst broadening their practice.

Currently, the family justice system and family therapy exist, to a very large extent, separate from one another. In fact, in the same way that there would not be any need for criminal lawyers if nobody committed a crime and little need for contract lawyers if everybody kept their word, there would be no need for family law solicitors or, indeed, any family justice system if separating or divorcing parents could unify themselves behind what was in their children's best interests. Such a radical move as abolishing the family justice system is not entirely without its supporters - even if one leaves to one side the understandable unhappiness of those parents forced into its machinery at a time when they are experiencing high levels of distress and upset in any event. Indeed, the Family Law Society, a support group for parents whose contact with their children has been impeded or restricted by parent or court have as one of their main tenets, equality of parenting. They ask why is it that parental capacity within marriages or relationships is beyond the scrutiny of the state, save for instances where the standard of parenting is such that the police or social services need to become involved, and yet many thousands of hours and even more thousands of pounds are spent by warring parents post relationship breakdown in seeking to undermine each other's previously uncriticised parenting.

I do not believe that many people need to be convinced about the merits of dealing with family disputes post separation, particularly when involving children, in a way which does not involve acrimonious litigation. Mediation is the most quoted alternative but it does have its problems. The very thing which must be mediated to ensure both parents reach agreements regarding their family post separation which enjoy both longevity and are reached from a position of empowerment - the parents’ belief systems towards each other - are very frequently not addressed due to limitations on the mediator's training and skill set. It is very likely that this is the reason behind the findings of the research undertaken by the Ministry of Justice in relation to longer-term outcomes of in-court mediation (2) found that about 60% of agreements reached by parents had been dropped, or had broken down, by the two year follow up point – this being due to one or both of the adults not supporting the agreement rather an adaptive change to circumstances. Further, two years after mediation, the majority of parents involved in that research continued to report a negative relationship with their co-parent that had not improved, or had worsened. At the two year follow up point, the number of children with borderline or abnormal scores for reporting psychological distress on a standardised measure remained about double the United Kingdom norm. One of the main conclusions reached in that report was that there needed to be more relationship based or therapeutically-orientated interventions, under the umbrella of public health rather than the family justice system.

In addressing the interactional difficulties of the parents and the family unit as a whole as a precursor to reaching workable agreements in a therapeutic as well as a practical environment, family therapy has much to commend it (rather than mediation, as is presently the case) as the compulsory first step in any parent wishing to embark upon family litigation.

For a number of reasons, however, family therapy may not provide the solution for the family. Nobody can be forced into therapy and once there it may be that one or both of the parents do not trust themselves, let alone the other parent, sufficiently to take responsibility for reaching agreements without the involvement of the ultimate decision-making authority, the court.

That does not mean that the skills of a family therapist should be left at the meeting room door when a parent first decides to instruct a family law solicitor to protect their interests. Indeed, it is the insistence of the legal professionals in the family justice system to work alone, save for typically limited court appointed mental health care professional expert input, that in my view the family justice system has attracted a great deal of criticism.

I should stress that I do not accept many of the stereotypes relating to family lawyers; most commonly, that they 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 other experts with non-legal skill sets 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.

In my experience, 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 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.

Due to their training and the holistic approach they take to the family unit and the characteristics of the individuals involved, the involvement of a family therapist from the very beginning of the client's case would have the following benefits:

• 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.
• 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.

This practice model therefore:

• 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 family therapists (and mental health care professionals) 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 family therapist (or 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 family therapist 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;
• would not be appropriate where the family therapist has acted for both parties because of the conflict of interest;
• 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 family therapists and mental health care professionals, although the practice model does not depend upon it being so.
  This approach is adopted with all my clients who are involved with disputes over their children, including cases where:
• Against the background of great hostility directed at a father by the primary care-giving mother and her family, the father had been prevented from seeing his young daughter for three years. It was clear that the contact obstruction was due to the inflexible resistance he met when dealing with the mother within that family system which bound itself together in its negative view of the father as well as in other, more positive, ways. The mother was, however, a primary school teacher and was unable to resist, from a professional perspective, the father's child centric approaches to the mother based on the loss to the child of having no contact with the father. Within a couple of months of the father instructing us, he was in contact with his child.
• A mother had threatened to take a client’s child to Australia to live with her permanently in what is referred to as a "leave to remove" (or international relocation) case. Viewing the mother holistically, it was clear that her decision-making in every other aspect of her life was closely intertwined with her self-esteem. Rather than defending any decision she came to, at the first sign of trouble, she would move onto the next decision. This would have been very destructive for the child when viewed against how many changes and challenges the mother would experience in permanently emigrating from the UK. Accordingly, when she made her intention known that she wished to move to Australia with our client's child, he actively sought from her the information on which she had decided to emigrate far earlier than otherwise would be the case and expressed his concerns about the pattern of this decision making, resulting in her withdrawing her application in what she agreed was the child's best interests.
• Conversely, it was clear that a mother for whom we acted and who wanted to emigrate with her child, had because of the age difference between her and her former partner had always been forced to seek his approval as a child would from a parent but would always receive dismissive chastisement if her former partner disagreed with her opinion. In that case it was important to the mother in obtaining her former partner's consent to emigrate to provide detailed proposals and attribute a high value to the former partner's views - something which would, in any event, benefit the child. The father who had himself relocated to another continent but who refused to allow the mother to do the same, eventually agreed to that move.
• In common with many other cases where the mother is viewed as a good parent by the father despite refusing to involve him responsibly as a separated co-parent, we emphasised to the father how important it was to acknowledge the mother's understandable upset at the breakdown of the relationship and to acknowledge her value as a parent - which she did not dispute - thereby substantially improving communication between the parents. In resolving their differences which involved certain very serious (but false) allegations against the father, the parents eventually became aligned behind their children's interests, whatever their feelings were towards each other.

The Family Law Week article has generated considerable interest and support amongst family therapists and 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
(2) Ministry of Justice Research Series 15/7 The Longer-Term Outcomes of In-Court Conciliation by Dr. Liz Tinder and Joanne Kellet, November 2007.
Richard Gregorian was formally 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 in all disputes involving children. Clients (including the very many parents he speaks to on a second opinion-pro bono basis), mental health care professionals, and politicians have all confirmed the good sense in adopting such an approach which works within all aspects of the present system.