Divorces end in court too often, says top family judge
DIVORCING couples are adding to the misery of break-ups by taking cases through the courts, a senior judge says.
Sir Andrew McFarlane, president of the Family Division in England and Wales, warned warring couples of the dangers of getting into a Kramer vs Kramer-style dramas.
The judge said such cases tend to escalate emotions and use of hostile language, which can make matters worse and be bad for children.
He said family courts are ‘fully stretched’ and taking a divorce through the legal process can add to delays in a separation, which ‘is not helping’. Sir Andrew added: ‘Some of the people who come to court, particularly to discuss disputes about their children, would be better served not coming to court.
‘We are seen at the moment as the first port of call, but we should be the last resort for them where there aren’t issues of domestic abuse or protection or safeguarding.’
Family courts deal with cases including divorce and disputes between estranged parents and handle issues including parents’ contact with children and financial arrangements – as well as some matters relating to domestic violence.
The Family Division, part of the High Court, hears the most complex cases, often where legal consent is needed for important decisions relating to children.
Sir Andrew said around a fifth of rowing parents ‘would be better served by, at least first of all, trying to sort it out themselves’ and children may be harmed by taking legal action.
He went on: ‘It is certainly recognised that to have a dispute that runs on in the court is highly likely to [harm] the child.
‘We’re already piloting new ways of working and part of that is that early on a social worker files what’s called a child impact assessment.’
The judge told BBC Radio 4’ s Broadcasting House: ‘The idea is to provide a wake-up call to the parents as to the impact of what they are doing on their child.’ He also criticised the adversarial language used in court, comparing it to the 1979 film Kramer vs Kramer starring Meryl Streep and Dustin Hoffman.
He said people ‘ will be familiar with the film… the court cases are still listed as Smith against Smith or whatever it is, and barristers talk about my opponent or someone is the applicant and someone who’s the respondent and we have hearings which are called dispute resolution hearings where we should be just problem- solving for the future of the child’.
Sir Andrew also suggested he supported greater transparency so journalists could more freely report on cases. The Daily Mail has long campaigned for more open justice in the family courts, where a number of controversial decisions have been made behind closed doors.
The Family Division makes thousands of rulings every year about whether children are adopted or put in care, and the access arrangements for separated parents – as well as ruling on contested divorces.
Family courts are criticised for holding too many hearings in private and not publishing the results.
This can mean families whose children have been taken away unfairly are unable to tell their stories and get redress using the media.
‘We should be the last resort’