Why Separating Parents Should Avoid Issuing Family Court Proceedings

Is it realistic for parents to expect the family courts to offer meaningful help and support for families who are experiencing the distress of their separation or divorce? There are many important points to consider, whether you’re the parent applying to the courts for a child arrangements order or you are the respondent parent. 

The vast majority of parents we meet report their experience in the Courts as a negative one. Here are some past and present comments we’ve noted in the feedback we receive:

• “I found it really stressful having to represent myself” 
• “It’s been financially crippling and I still don’t have the contact I hoped for” 
• “I felt the whole process was completely biased and unfair - there's no equality”
• “It's taken so long for me to get an order - now my contact has to be supervised” 
• “My ex doesn’t stick to our court order so I have to keep making new applications!”
• “My ex made so many false allegations about me in court. I'll never be able to trust again and I can't stop feeling angry! ” 
• “The court order didn’t cover all the issues we needed to agree on and we were sent back to mediation”
• “Our hearings were often delayed. Sometimes we didn’t even get the same judge.”

Relinquishing Parental Control

Separating parents need to recognise and appreciate that in bringing family matters before the Courts, they are, in essence, relinquishing ‘control’ of their family’s future and thereby reducing their capacity to resolve their own parental issues. By handing over parental ‘power’ to a judicial system that is adversarial and combative in style, the risk is, that the court process may only serve to aggravate, and often escalate, the conflict between you.

Escalating the Conflict

This conflict will not only take its toll on you personally but, as parents, it will reduce your capacity to support your children as you focus on all the legal proceedings. And it will impact on your children more than you can ever imagine. As they become more and more aware of the ‘war’ being waged between you, they will struggle to find the resilience needed to adapt and deal with your separation. Ultimately, the longer the conflict continues, the less they will feel able to express their thoughts and feelings and the more they will potentially end up feeling lost, confused, isolated and abandoned. 

Allegations & Accusations Abound

In an attempt to discredit each other as parents, former partners often ‘paint’ an entirely disapproving and negative profile of one other. Often there is a need to feel vindicated and play out the ‘blame-game’ in the court arena. Intractable and long-lasting disputes often arise as a direct result of further harmful & damaging allegations and accusations. Naturally, the court then has a duty to investigate these safe-guarding on behalf of children. Sadly, these type of ‘tactics’ or ‘strategies’ are often employed to withhold or restrict access to children. They usually only serve to encourage increased suspicion and parental mistrust. It’s a destructive approach to dealing with an already very fragile system (your family) that can only be likened to driving a steamroller over an already shattered glass flower (your child). And in time, any malicious attempts to discredit, diminish or devalue the other parent will probably backfire in the end as children make their own observational judgements about how you treat each other.

Legal Advice & Advisors

Whilst it is both recommended and essential to fully understand your legal rights and entitlements, parents should bear in mind that solicitors fight solely for their clients. In this respect any legal advice you receive does not necessarily take into account the needs of the whole family. For this reason it’s important to choose your counsel wisely and where possible seek out a collaborative lawyer whose code of conduct is to try to minimise the conflict. Remember, you are paying for a service so the choice is yours. If you are not satisfied with the advice you receive, look elsewhere. It's worthwhile doing some research of your own too as the more knowledge you have, the more empowered you will be. If there is a recommendation to go to court, think carefully before entering a judicial system that may create further resentment, leaving you mentally exhausted, financially depleted and emotionally battered. 

Court Resources & Costs

Court resources are increasing sparse, particularly in the current Covid climate. The backlog in cases continues to grow with over 100,000 divorces in 2020. Long delays are now to be expected and it may be many months or typically, years before you have a resolution to your case. There is also no such thing as reasonably priced litigation: it costs money, and if you have a figure in your head, triple it and you’ll have an idea of just how much you’ll be out of pocket at the end of the process. It’s worth bearing in mind all the potential benefits of saving your precious financial resources for your ‘new’ life & your children’s future.

ADR (Alternative Dispute Resolution)

As we head towards a long-awaited change in the law and ‘no-fault’ divorce this year, the traditional contentious litigation process seems increasingly outdated. The ‘true’ purpose of the family court is to help restore contact for a parent who is being denied contact with their child (when no safeguarding issues apply) but sadly, these cases represent only a small number of applications. Far too much of the court’s time is taken up with matters that parents should be able to open up dialogue about in the interests of their children - whether directly or in the mediation process. With so many collaborative options currently available now, there’s no excuse for parents not to seek out the specialist support they need. And making good use of the guidance and ‘tools’ they offer will help drive your divorce process down a far gentler path.                

It is not surprising then that family courts cannot always be expected to come to the rescue of a family who are shipwrecked out on an ‘emotional sea’. Judges are often required to make monumental decisions for families, sometimes having only met the parents briefly and in most cases, never having met the children. How can judges be expected to satisfy the detailed requirements of a family whose lives they have little or no knowledge of? 

Rather than arriving at a “win-win” solution, the impossible position of the court inevitably produces a “lose-lose” result, generating further resentment rather than encouraging and fostering an atmosphere of much-needed collaboration. So how can this process ever really seek to create the positive foundation on which to build a future co-parenting model when parents, who are emotionally raw from separation end up thrashing it out in the courts?

The courts can be very effective but cannot be the ‘fixer’ of all problems. Family situations and dynamics vary so greatly these days and everyone’s situation is unique. By diminishing your own decision-making capacity as parents and embarking on a relentless campaign of blaming each other, you could find yourself unpleasantly surprised at the outcome. 

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