Advice ignored since 1925: Courts are not good for children

28 October 2022: A century ago in 1925, the barrister Sir Claud Schuster warned the law-makers that decisions made in courts are not good for children. After 100 years, the UK’s top family court judge (again) urges us all that family courts should be the last resort not the first port of call for separating families.

1925: [courts are] concerned…with the definite ascertainment of the rights of the parties … There are no rights here [issues to do with children]. It is a question of discretion. To take a ridiculous instance, a dispute whether a child is to go to one school, or to another school – how on earth is the court going to deal with that?

Sir Claud Schuster c1925

This time, Sir Andrew asks: “When families fall apart do they fall too easily into court?”. His subtitle: “Almost anything but family court.” The history he tells explains a lot about how the family law system has turned out this way.

The advice that was ignored in 1925 was that decisions about children were matters for discretion, not courts ascertaining who has rights or who is right. 1973 saw another unhelpful requirement that ALL divorces go before a judge as parents couldn’t be trusted to decide about their children on their own.

The Children Act 1989 built on better principles. These still stand: the welfare of the child is paramount, parental responsibility (rather than rights), child arrangement orders (rather than custody and access) and the default avoidance of any orders if possible.

Yet 30 years later, Sir Andrew fears, our wider culture hasn’t got that memo.

In a system which has the welfare of the child at its core, an arid dispute simply about the respective status of the two adults has little place.

The adversarial nature of the court process is unlikely to have a healing impact on the participants.

I can tell you that there are no ‘winners’ (other than possibly the lawyers) at the end of family proceedings.

The older conception of needing to come to a judge as the first port of call … continues to hold sway in the minds of many. … There has got to be a better way for separated parents to be supported and enabled to resolve disputes about the future care of their child without embarking on court proceedings.

Sir Claud used children’s schooling as an example of things that families and others at the frontline sort out. In fact, that memo and mindset has long been in place.

There are laws about education. But the vast majority of children’s educational troubles – even distressing ones like school refusal – are worked through with due discretion at the frontline. What children have to say is key but not always the best way forward.

Serious concerns bring in social services or police. But faced with any school problem, no one goes straight to a lawyer or judge as their first port of call. Yet that’s what troubled separating families do.

Twelve ways to avoid court

Borrowing his subtitle from Jo O’Sullivan’s book “(Almost) Anything But Family Court” Sir Andrew ends with a handy summary of the 12 options set out in her book.

  1. DIY or Kitchen Table Agreements:
  2. Mediation:
  3. Hybrid or lawyer assisted mediation:
  4. Child inclusive mediation:
  5. Collaborative Law:
  6. Round Table (with lawyers):
  7. Arbitration:
  8. Arbitration/Mediation:
  9. Online:
  10. One couple, one lawyer:
  11. Early neutral evaluation:
  12. Private Financial Dispute Resolution Judge

From Jo O’Sullivan: (Almost) Anything But Family Court

Sir Andrew McFarlane in the House of Lords talking about “(Almost) Anything But Family Court” by Jo O’Sullivan

I am very keen for there to be much greater provision of resources to support separating parents to resolve issues without coming to the Family Court. [And] there are many different options that are already in place to assist parents … in a much less acrimonious setting, and more swiftly, than coming before a judge or magistrate in court proceedings.

A lesson for the world

Sir Andrew’s UK history lesson and advice applies internationally. The same pattern of momentous ignorance continues around the world. It is the nature of law-making that laws take ages to put in place and even longer to be revised or replaced.

As the decades roll by, vast numbers of families and children have suffered the consequences. Sir Andrew clearly intends that his voice will not be ignored for another 100 years as Sir Claud’s was. Courts are not good for children or parents.

There are already better earlier ways to support separating families. Elsewhere Sir Andrew has called for an effective campaign to change that persistent old mindset from legal to health-based solutions. Just as we do for troubles with children’s schooling.