Climbing the mountain: 3. In courts

Now on to Part 3 (of 9) of climbing the mountain of high conflict family separation of all kinds. See Introduction, and Before court. Or read the whole lot at once – with feedback added in.  Inevitably there is a British flavour to all this, but the issues are often global. Please link in any equivalent schemas in other countries by Commenting below. Part 3 …

Prevention and Early Intervention: In Courts

Screen Shot 2015-08-21 at 10.06.15Family courts everywhere have slowly changed from their natural adversarial culture to help shape more collaborative outcomes. There is still a way to go. Maybe in some legislatures (e.g. Scotland) significant change will happen shortly.

A family court may seem intimidatingly like what we all imagine a full court of law looks like. But – until they specifically move to become proof hearings – family courts (in the UK at least) are intended to be just another more structured public way to encourage and produce a collaborative agreement between parents. The focus is still on pushing for collaborative parenting decisions.

  • Aim: There are many improvements in family courts in progress and under review that need to be more quickly defined and put to work. Some require more development and determination, others are just a matter of changing custom and practice.
  • Aim: To have lawyers and family courts everywhere clarify the difference between an informal and a proof hearing, about reports and challenging them, so that clients who are new to the system are clearly and reliably informed from the very start. It is not enough to rely on clients’ ignorance and their blind trust of those who know the system.
  • Aim: Courts have an important role in prevention. The initial informal family courts must leave further behind their old adversarial patterns in order not to add to unfairness, injustice, polarisation and entrenchment. Many good ideas are slowly being put in place:
    • For example, all courts should send out in advance routine guidelines (as some do now – Florida and Midlands) as part of proactively establishing what parents and lawyers are expected to do and not do in that court.
    • For example, to avoid harmful delays for the children, there should be reliable waiting time limits for child welfare hearings and reports.
    • For example, chronological if not actual continuity of the judge or sheriff can be instructed through the pre-welfare hearing assessment and report
    • For example, a fairer more level playing field at the start would mean that the resident parent’s previous decisions are addressed before the non-resident parent is put on the downhill spot as if they are on trial for their innocence and worthiness to be a parent. If serious allegations of risk are made, those must be properly and promptly assessed as the next step. If the resident parent does not have good enough reason to have limited contact with their other parent, then the court can without further ado expect parents to take steps to establish better contact and shared care. And courts need to be ready to follow up to see that changes happen.
  • Aim: Those lawyers, experts and judges who take part in the more informal processes must still be the best, most comprehensively trained and skilled professionals, since their assessments and decisions have more unchecked power than in a proof hearing. In the UK, in at least some cases – the more complex ones – courts struggle or make things worse because of reporters and reports that are inadequate. This is no surprise given the complexity and the lack of enough training. To class these reports as just information-gathering is to fail to realise how powerful complex personal information is shaped, interpreted and easily misinterpreted.
  • Aim: The court culture must enable relevant challenges to reports at informal hearings to discover when a move to proof is appropriate and to avoid imposing badly made, poorly agreed, decisions.
  • Aim: It is very relevant, then, to properly review and ensure better levels of service and training for CAFCASS or Bar Reporters (in Scotland) and their equivalent officers in any country.

Here we have moved on to the more severe and enduring cases. We need to keep remembering that these always mean there is emotional child abuse going on. We simply must not turn a deaf ear to child abuse.

To be continued. Next time: 4. Enduring Cases

No claim is made that this thinking is the best. Please feedback below to improve and enrich the process.

Nick Child, Edinburgh

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About Nick Child

Retired child and family shrink now family therapist living, working and playing in Edinburgh.

3 comments

  1. Nick, sadly, especially in the USA, once you have submitted your financial affidavit, now the attorneys, Guardian Ad Litems (GAL), Attorneys for the Minor child and the courts know what you are worth. And now they know how much to bilk you by dragging the case out. Attorneys in CT are particular suspect and into this frame of mind. This became more apparent when in the late 2000’s, the economy plummeted and attorneys stopped getting hired because no one could afford them. So many became GAL’s, because they could charge $350 to $450 an hour to “protect the best interest of the child” and as they were appointed by the courts, the parents had to pay them. It did not matter that these GAL’s were not properly trained, that they dragged the cases out making things worse for the children and stealing the money that was needed to raise these kis. It was business to them. When a parent could no longer afford their fees, they forced parents to liquidate their children’s college funds, 401k’s, IRAs and even put liens on their homes. It took a long time for CT to enact laws to try to curb this behavior of the GAL’s and AMC’s but it is still not perfect. We still have extremely corrupt GAL’s who despite the new laws, continue to disregard them.

    Don’t get me wrong, I am not saying this is not possible. What I am saying is we need to take the money out of the equation and get properly trained professionals into the family courts. And this is what Heather MacLetchie Ehinger and I are doing with educational training programs for professionals. She runs program that meets once a month for 3 hours, 8 times. We have had attorneys, financial professionals, mental health professionals and so on come to speak and educate the attendees. Next month, we have Judge Gordon coming to speak. We are hoping to make this into a live/recorded program that anyone anywhere in the world can take and get CEU credits for it. Right now, the only way to attend and get the 2 CEU units for each class (total of 16 CEU’s for the 8 classes) is by coming to Westport, CT. But you can take one class or all of the classes, it is up to the professional.

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  2. I believe you and this is a very good post. Even before the financial crisis when attorneys, GAL’s got hit it was still occurring that family court procedures were dragged out for far too long. It took our Court appointed expert witness 3 months to write a 5 page report!! I personally think GAL’s are an extra attorney that although supposed to be there for the children is an extra expense and they are superfluous. He was extremely influential in swaying the Judges’ opinion with absolutely no knowledge of PA whatsoever. There was also the problem of the delays caused by trying to find a date for the court to fit in a hearing. My whole custody case took 2 years to come to trial. This was 2 years of not seeing my children at all and 2 years of being in the care of the alienating parent. This was in the US in 2002 – I am not sure how time rulings stand in the UK today or indeed the US.
    Well done for setting up your educational program in Westport and trying to educate professionals involved in family court. It’s a big wide world out there and let’s hope that what you are doing will catch on and there will be more classes like yours to educate all the people involved with family courts.

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