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Those Cruel Courts

September 27, 2010

Sir Nicholas Wall in a speech to Families Need Fathers thinks that the Family Justice Review may diminish or even abolish legal aid for private law family disputes (i.e. residence and contact arguments between separated parents). Zoe Williams in The Guardian comments on Sir Nicholas’ speech and among other matters states what we all know subliminally, that protracted private law proceedings between parents damage families, scar the lives of children and that much of the harm flows from the court process itself. So, indeed why should legal aid be made available to warring parents when its effect is to cause harm their children (and themselves) in interminable court proceedings? But, if legal aid were abolished in these cases we would arrive at the ridiculous position that wealthy parents could fight their disputes out to their heart’s content, with all the concomitant harm to their children, while the poorer parent would be denied that opportunity. I ask you, is that fair? Is that just?

The logic would be to close the courthouse doors to ALL private law disputes over children. That would bring to an end the harming of children through the court process itself and, apart from causing distress to large numbers of lawyers, sounds like a good thing all round at least at first glance. However, on reflection one realises that closing the doors of the court will not make the issues go away – it will just mean they will be fought out in different arenas.

These disputes, says Sir Nicholas Wall, “are rarely about the children concerned. Far more often, the parties are fighting over again the battles of the relationship, and the children are both the battlefield the and ammunition”. A colourful metaphor but what in fact flies to and fro between the parties are statements and letters, allegation and counter-allegation interspersed with court hearings where parties and their lawyers exchange insults. Not nice, but a lot better than trying to settle these disputes by abductions, by stabbings and by shootings.

Both Sir Nicholas and Zoe Williams seem to think some different arena, such as some sort of mediation, resolutions or arbitration service is the answer. I think they both fail to recognise how determined some disputing parents are to have a fully adversarial fight and to pursue their various arguments to the (very) bitter end. There is little point in taking these disputes out of the courts if it just means the same damaging and protracted battles will be fought out in a different forum.

The question becomes; can one create a forum and a system which will deal with cases, especially the most difficult cases, better than the courts do now, or with sensible reforms, could do in the future? While there’s a lot which could be improved in the present court based system I’m not at all convinced that a completely new forum and system is likely to be superior to the current very imperfect arrangements.

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