With divorce leading to suicidal tendencies in children, should the legal profession remain the ‘gatekeepers’ to such an emotional issue? So should it be left to Government and the legal profession to be solely responsible for trying – so far unsuccessfully – to improve a situation that leads to children being so unhappy that they feel like killing themselves?
The discovery in a recent survey that one in three children permanently loses touch with a parent post divorce – usually the father – and that one in five parents say that their primary objective during separation is to make the experience “as unpleasant as possible” for their former spouse, indicates to me the existence of some deep social ills in regard to how we handle relationships when things go wrong, and the fallout from that failure.
It is not surprising, looking at the study commissioned by family lawyers at Mishcon de Reya to mark the 20th anniversary of the Children Act, that the children involved said that they “felt used” by their parents, with a third feeling isolated and lonely. Half of the parents involved said that they had sought a day in court to haggle over residency arrangements despite knowing it made matters worse for their children. A quarter of parents said the process traumatised their children so much that they self-harmed or were suicidal.
The study is the biggest of its kind and involved interviews with 4,000 parents and children who had been through divorce. The Children Act was supposed to improve the welfare of youngsters caught up in parental separation by placing their needs first. But lawyers at the firm say it has clearly not worked and a new approach is now required. Between 15,000 and 20,000 couples go to court to resolve child access disputes each year.
Sandra Davis, head of the family division at Mishcon de Reya, which represented Diana, Princess of Wales in her divorce, said things had got even worse after the surge in care proceedings following the Baby P case. Battles over residency are now held in a 14-month queue as the family courts struggle to cope with the surge of cases of taking children into care. And these battles cost the state money: Sandra Davis believes that “The millions spent on Legal Aid and running the courts could be better spent educating parents about their children’s needs and how to avoid long-term disputes.”
So overstretched family courts may now be the incentive to look for solutions, rather than just the misery of countless families who have been failed by a legal system that makes them feel dependent upon lawyers. The divorce process can be difficult and time consuming for those who take the ‘do it yourself’ option, in an attempt to save money and also because many associate going to a lawyer as being the equivalent of going to the gun shop, and arming themselves to the teeth ready for a full on battle. Most of the divorcees I have met who have been brave enough to take the law into their own hands are women who have simply run out of funds and have no other choice.
I spoke recently with a friend who had just filled in her Form E, which she downloaded from Wikivorce, making use of the helpful guidelines they provide, and she stayed up to 3 in the morning to sort out and collate the 140 pages of financial proofs, documents, letters and other information and chronologies.
How are we to empower parents and encourage them to put their children first, when the whole process of divorce is so dis-empowering , overwhelming and downright scary, especially to those who feel forced unwillingly to take matters into their own hands? And if the existing legal system, with its high legal fees, is failing to help the process be less damaging to parents and children alike, how are those resorting to do-it-yourself going to do any better?
Mishcon De Reya have suggested creating a “contract” for children to give to their parents on how they ought to be treated during a divorce, and ‘conflict clinics’ where parents can let off steam and resolve issues out of court. I believe that putting two warring partners into a safe space, to share their hurt and feel ‘heard’, could potentially make the mediation process much more likely to succeed for many couples. It is hard to be ‘reasonable’ and make financial compromises in the interest of the greater good, when you are burning with resentment and bitter pain. That pain needs to be recognised, expressed and shared before it can be ‘let go’.
But if they are to work, these clinics will rely on a highly skilled set of facilitators – as anyone who has been to a really effective counsellor or life coach will tell you, their profession is a calling, not something you take a course on in addition to your legal training.
Making the divorce process less combative would be a good first step – yet currently, if you wish to divorce within two years one of the couple has to accuse the other of adultery or unreasonable behaviour in order to end the marriage contract.
“The current statement of arrangements form is infuriating and divisive and serves no purpose but is a worrying additional hurdle for those trying to manage things without representation.” This is the view of Collaborative Lawyer James Pirrie of Family Law In Partnership: “We must have back- costs awards. At present it is virtually impossible to get a costs order against someone – the result of that is that people are put at risk from bully boy tactics that can be rolled out with impunity.
“Why is it that we aim to encourage parties to put the past behind them and yet we start by insisting that 65% present issues of fault (84,129 out of 128,290)? Our laws are now almost 40 years old (the 73 act was a slight remodelling of the 69 act); what was ‘creative’ back then has become destructive now. If we are so aware that children face fall-out where their parents’ separation is handled badly, why is there no government support provided for parenting information sessions – currently £92 for 4 hours on a pilot arrangement backed by lawyers group Resolution (Parenting After Parting www.resolution.org.uk/parentingafterparting)?”
When even the lawyers are calling for change, why are the general public not campaigning for a less aggressive way forwards through divorce? Is it that we are just so used to handing over responsibility to others? Whether we encourage divorcing couples to use Conflict Clinics, Mediation or the Collaborative Law process, the first hurdle is to educate a culture entrenched in litigation and hostility.
And what about those children that this process is ultimately designed to help – how do they fit in? How will their voices be heard? The idea of a ‘contract’ that the children create to guide their parents on how to behave during the divorce process, supported by Mishcon de Reya, is a powerful one – but without the backup of communication and parenting skills support, the basic tools for making this idea work in practice will not be available to most families – unless they were lucky enough to have parents who were good role models for mutual respect and democracy in the family home.
Perhaps the real problem, is that the legal profession is trying to remain the gatekeepers to the divorce process, rather than actively encouraging couples to stop expecting their lawyers to sort it all out for them, and to take full responsibility for the process themselves?
A divorcing couple will approach separate lawyers, often receiving conflicting advice, and then hope for a ‘cure’ from the illness of divorce. They treat their respective lawyers like doctors who have given them a bottle of pills, whilst the patient continues to eat badly, drink and smoke too much – then wonders why they never seem to stay healthy for long and blames the medical profession instead of themselves. They bemoan the fact that the divorce process takes years longer than they ever imagined and costs them most if not more than the value of their joint assets, yet are unable to sit down and talk with each other and find a better way forwards.
Of course, to create communication in a broken relationship is tough and it does take help and support – but many divorces begin amicably, and only become soured as the process takes hold. Sadly, the existing system does little to improve this situation – many claim that it actually encourages it.
Some legal firms – such as Family Law in Partnership who work closely with skilled professionals, who are able to help their clients with the emotional journey they are embarking upon when going through divorce, are client centred and encourage the couples to seek support in a holistic way. As do many of the other family and collaborative law firms who are part of the Starting Over Show events, the firm recognises that a frightened, angry client is going to be able to deal with the legal aspects of divorce in a much better way, if they have been supported emotionally and psychologically, by a trained professional for whom that is their speciality.
If you want to create positive change, good role models are required – and those are hard to find in our current society, reflected in the media obsession with celebrities’ crippling emotional breakups. When Madonna and Guy divorced without any obvious show of hatred, emotional disintegration or public shame, the tabloid press failed to mention to the general public that they used the Collaborative Law process – which aims to keep couples out of court, encompasses mediation and even the use of divorce coaches if the clients so wish. The Collaborative process, as with Mediation, puts children at the heart of the process as the main incentive to avoid a bitter wrangle.
The majority of people I talk to – including those who have been through divorce, have never heard of Collaborative Law. Many think that Mediation is something to do with Relate, and is about ‘getting them back together’, rather then helping them break up with less damage to themselves and to their children. What is the point of creating new initiatives, however sound, if the positive resources available to divorcing couples which already exist are not even part of the public consciousness?
I think the conflict clinics could be a brilliant idea – if run well and if there is a wider, holistic bedrock of emotional support for the parents participating. I invite Mishcon de Reya and Tim Loughton to come and talk to the Starting Over Show visitors in March – most of whom are going through divorce or family breakup – and tell us more. One of the main objectives of Starting Over Show is to raise the profile of mediation and collaborative law as child focused and a much less combative way of moving through divorce.
Sandra Davis of Mischcon de Reya says that: “The millions spent on Legal Aid and running the courts could be better spent educating parents about their children’s needs and how to avoid long-term disputes.” But should the government or the legal profession be leading the way on such a sensible initiative? Looking at their past failures to achieve such an admirable goal, should there not be other, more independent organisations getting actively involved?
I believe that it is not government and the law that needs to lead the change, but that this is the responsibility of us all: As James Pirrie warns: “We need to get to the point where parliament is no longer frightened to deal with this crucial area because of what the Daily Mail says – it was effectively responsible for the abandonment of the 1996 reforms.”
Whilst we create structures to ‘resolve’ the problem of a divorce system that costs misery to families and millions of pounds to the State, we should also work harder to educate and enlighten. To speak of improving the welfare of children whose parents are divorcing yet continue to support laws that say it’s absolutely fine to hit our own children – as long as its not too hard – is somewhat bizarre. If I got cross with an adult in a shop and slapped them, without causing bruising, I’d quite rightly be arrested,
Yes, it’s time to stop ripping the kids apart and using them as weapons in the divorce process. But often simple methods can be quite profound – the poem “Weapons” is given out by a collaborative lawyer at Mayo Wynne Baxter to her clients as a dire warning of what can happen when parents do not take responsibility for breaking up without busting up their kids. It acts as a wake-up call to parents who can so easily (and it easy, I know that from my own experience) put the children into the frontline of the battlefield.
This is not to say that we don’t still need the lawyers – but we need to be more aware of the different legal services on offer, and use those choices wisely. For divorcing couples to have no idea how the collaborative process works, or that mediation is more than a tick box for getting legal aid, then expect their lawyers to rescue them from their divorce nightmare without taking any real responsibility for the process themselves, is unfair. It is up to us to ask questions and find out what choices we have, and then choose the right set of professionals to help us. I would not expect my plumber to fit my central heating if he was not Corgi registered – nor would I expect him to help me decide between a wood burner or a combi boiler – he’s not the one whose going to be sitting in my living room on a cold winters night.
By taking more responsibility for the whole process of divorce – accepting that it is an emotional and psychological journey and not just a set of legal forms, is vital if the current situation is to improve. Collaborative legal firms are perhaps leading the way in encouraging clients to access a range of specialist support, including divorce coaches and financial mediation, but other gatekeepers to the divorce process could be the wealth of information and inspiration that exists already if we ask the right questions, and our own ability to access a holistic approach to a complex life crisis.
Is it not time that parents themselves led the way in divorce reform, by investing in pre-nuptual agreements that are updated regularly, created with the help of mediators and even life coaches so that they become a vision of a positive future for the couple, with a sensible ‘if it doesn’t work out’ provision for what would happen next? After all, we don’t assume we are going to die tomorrow just because we protect our families by creating a Will. Let ‘pre-nups’ become a mission statement for the couple and their children instead of simply a legal and financial document.
Many modern marriages involve couples who already have children and independent assets. Many have been through divorce already. Pre-nups currently lack the legal validity of a partnership agreement between two business colleagues – but couples are increasingly spending money on creating them which indicates that they are ignoring the ‘unromantic’ image and deciding that intelligent partnerships need to be able to discuss all eventualities and make their own decisions rather than risk the lottery of divorce.
Cafcass, the family court welfare service, published quarterly figures showing a 60 per cent rise in public law case requests, with 4,236 requests made between April and September 09 compared with 2,608 in the same period last year.
SOS Village resource site: http://www.sos-village.org The poem “Weapons” http://www.startingovershow.co.uk/index.php/using-the-children-as-weapons/ References: http://women.timesonline.co.uk/tol/life_and_style/women/families/article6917868.ece http://www.mirror.co.uk/news/top-stories/2009/11/16/divorce-kids-lose-fathers-115875-21825220/