Creating an informal proactive court … Mediation with knobs on!

Motherwell CAMH Service 2015

I was once a community-based child psychiatrist in a friendly multi-disciplinary team here in NHS Lanarkshire. Sadly few Scottish services took seriously enough the needs of children and families engaged in the stress of family law and courts after separating. But what I did do at that time for a few of those families now seems rather relevant to my recently chosen field: high conflict family separation.

All I did was to convene a meeting and write letters afterwards. Millions of people do that all the time. But I did it when I was supposed to do something else.

For children referred whose troubles clearly arose from the conflict between their separated parents, I used my position to set up a different kind of appointment than the usual one.  I set up what I’m now calling: an informal proactive court … a kind of family mediation but with knobs on!

An invitation to innovate

Famous innovators get away with innovating under cover of their fame. But you can also innovate quietly. Maybe all effective professionals are innovators, using creativity sensibly and not being totally tied to what they’re supposed to do.  We hope to hear more from these quiet innovators with high conflict separated families here soon. I’ve decided not to be so quiet about this.

The invitation in telling you about this is – for those professionals who feel bold enough – to do something as sensible yourself. Oh and please do tell the rest of us about your innovations!

If you do not feel bold, my advice is different: “Don’t try this at home!” You may face a complaints procedure if you get it wrong, one I can’t promise to rescue you from.

When I did my thing then, it just seemed sensible good practice at the time. So it didn’t seem worthy of being published. The story begins way back in the 1970s. I was training as a child psychiatrist for the NHS and (what is now called) the Child and Adolescent Mental Health Services (CAMHS).

Not an informal family meeting!

I suspect that some of what was normal decades ago hasn’t changed … except that everyone is now more tightly managed. Everyone now has to follow demanding budget- and outcome- driven protocols. That’s fair enough since taxpayers – that’s us! – want to know that our money is being well-spent. But that means there’s now precious little chance of anyone doing anything innovative like what I describe below  … Maybe if I’d published something earlier, it would have got into the procedural guidelines of good practice. Some hope!

Why I encourage others to think about this kind of joined-up family work (e.g. see my overview here) is that it is the basis of effective intervention alongside the legal system for high conflict families after separation – as in the USA’s Parenting Coordination.  “Without the intervention the court cannot act and without the court the intervention does not have teeth.” (Woodall 2015)

Contrast this teamed-up idea with Mediation or Collaborative Divorce (or Couple or Family Therapy even more so) where there is a  strong boundary separating the work off from the legal processes. That is a necessary boundary for those different purposes of promoting safe collaboration between parents who are committed to doing it.

The story starts …

I was as free-thinking then as a trainee as I have always been.  I observed my esteemed training consultants do the usual expected psychiatrist-thing with referrals like these. Typically, they would meet a separated parent to take the one-side of the story. They would assess the child and their anxiety or depression or difficult behaviour. They would pronounce a suitably impressive psychiatric label – Anxiety Disorder, Depressive Disorder, Conduct Disorder.

The British NHS offers a service free without having to get a label and health insurance to pay up (which is what happens in the USA). But the labels are still used in the UK to keep expensive consultant medics and their treatment services under some control – see above about us taxpayers.

You’ll note that these labels don’t really tell anyone what they didn’t already know. The causes behind these problems would probably be correctly attributed to the stressful family separation. Again kinda obvious, you might say … as I did then.

A partial approach only

Somehow though, the medical authority and the capital letters validate things. Advice might have been for parents to go to family mediation services. CAMHS help might include some kind of supportive work for the one parent – not both parents, though. And for the referred child too – but just the worrying/ied one, even though the quieter siblings might be just as needy. A family-systems approach would think about the whole family as well as other issues and agencies involved.

But even colleagues who were interested in the (then) new-fangled family-systems ideas wouldn’t dare to apply that thinking in these difficult cases. In fact, if there were active legal processes going on, that would be a reason to steer well clear until legalities had been decided elsewhere. Which is fair enough since it could get very messy if everyone got involved at the same time without clear remits. See above about boundaries.

And of course the whole process – free welfare state services, NHS, CAMHS clinic, label, blame, support rather than rational intervention – could be used to escalate the conflict between the parents that was causing the problem in the first place! “Need a psychiatrist, do you?! Well wait ’til the courts hear you’re not up to the parenting job!”  “The doctor says that Johnny’s problem is your fault. So I’m going to cut down his visits to you.” Again, fair reason for CAMHS to stay out of the crossfire.

As for many things I observed in my training, I learnt a lot of important things. And one of those was sometimes what NOT to do. This was one of those situations. I decided something more useful needed to be offered. Here is what I did instead:

The context

I used my position to set up with the parents (and their lawyers) an informal proactive court process. It all took some dogged determination and time to do it within a busy service that would normally not have bothered much with this kind of client group or this kind of approach to it.

A modern way to call a family meeting!

Team colleagues and management were, if they wanted to know, persuaded that the extra input of time and effort (and expense) was worth it given the prompt improvement and the savings of misery and trouble for the children and families, not to mention the time and expense of what may be years of other agencies involved.

It is important to remember a few things. As a medical consultant in the NHS, I had a great deal of widely supported power, skill and authority. Consultants then as now were deemed to be well qualified and trustworthy professionals who knew what they were doing. In those days, not now, that meant consultant child psychiatrists could just about do whatever we wanted. Mostly that would indeed be dedicated trustworthy skill based on our many years of training. For this though, I used my authority to innovate something I hadn’t been taught.

Note too that the cases I was working with were only moderately conflicted or disturbed. The parents were ready to engage and work things out and use my help over relatively minor issues like contact arrangements. You would need several levels more determination, skill or charisma to work with families who are most locked into and disturbed by higher levels of conflict. I don’t claim this approach will work with families in greater conflict.

On the other hand you could argue that if more people did this sort of sensible thing earlier on when it is possible, then things would not be able to escalate so badly.

Referral and phoning

• The referral letter would be read out at our weekly team allocation meeting. It didn’t have to come from a family doctor (GP) to our service.
• When that letter described conflicted separation as the likely stress and cause for the child’s upset or behaviour, the team would decide: “This looks like a case for Nick”.
• This kind of case would not be put on a waiting list, of course.
• Nick would then phone both parents separately to share and discuss what he was going to propose. Each phone call would take at least 20 minutes.
• Any extra concerns were identified during this phone call. The parent was invited to phone again if they had more questions. This invitation to phone again was repeated in the appointment letter.
• A key child-focused principle – and a phrase used in phone call, meetings, and letters too – was: “We all want what’s best for Jenny / Jimmy” i.e. the children.
• No one is going to argue with this basic assumption. The power of a good uniting idea is that people cannot disagree with it.
• Even if one parent thought the other parent did not want “what’s best”, they would still be bound to go along with what Nick was proposing – an offer they could not refuse.
• What was surely going to be best for the children – Nick then suggested – was to help the parents see if they could work together better as separated parents than they seemed to be able to do so far.
• This second principle may not be so readily agreed by separated parents. But it is another widely assumed and evidenced principle and very hard to refuse. Each parent would at least want to show that they were agreeable, even and especially if the other one was not.
• This second principle – that collaboration of separated parents is good for their children – also enables a child-focused approach that does not then require the child to be present.

Setting things up

• In the first place Nick offered an appointment to meet both parents together and without the children attending.
• If the children needed more in their own right, then everyone knew that could be arranged later.
• Nick clarified that this meeting would not be like the expected first assessment appointment with an NHS consultant.
• It would be more of a structured, balanced, neutral, constructive meeting that Nick would chair carefully, fairly and firmly.
• The flexible agenda would include hearing some of what each parent had to say, a discussion of options, and some decisions and even detailed plans by the end of it.
• Options would be prepared for what to do should things get too heated at the meeting. The aim of this was to ensure that we all survived in tact to try again another day, rather than give up in disarray at the first hurdle.
• If it proved necessary, Nick would offer to meet each parent individually on the way to the joint meeting.
• The phone call itself usually served as enough of an individual meeting with each parent, getting their views and information, and engaging their trust that Nick was skilled, genuine and trustworthy.
• Going for the joint meeting from the start was efficient. An NHS consultant has a very demanding workload and schedule.  S/he is an expensive resource. So it is important to take the shortest cut possible. But no shorter.
• Parents might have to travel and take other trouble and expense to be there. So a joint meeting was already several times less time and trouble than two separated parent appointments (plus maybe one with the child too) and then a joint meeting as well. But that longer process would still be worth doing compared with the alternatives and their even greater time, trouble and expense.
• The importance of a specialist NHS appointment with a consultant ranks perhaps second only – in terms of ‘having to attend’ – to a family court hearing itself. People would take time off work and make arrangements to be there.
• Remember though that, in contrast to legal and some other services, NHS services are ‘free at the point of delivery’. And they are mostly seen more positively as a trusted and caring service than courts are.
• Once all of this had been verbally agreed by phone, a joint letter was sent to both parents confirming the first appointment, repeating some details and the principles in writing.
• The letters were explicitly and always open to correction by either parent. Further discussion at another meeting might be the usual outcome of any substantial matter arising.
• Plus …

Summary letters – copied to the lawyers

• … Essential to this approach was to discuss and agree that Nick would write and send a letter to both parents after each meeting.
• The letter was to summarise the meeting, the issues, and any decisions – sometimes in specific detail, for example, about contact arrangements. Typically the letter would be two to three sides of A4. That’s short by the way!
• In addition to phoning the parents, and with their verbal permission, Nick also contacted their respective lawyers to let them know what he was proposing. This was a briefer call, but still enough to engage and recruit their active understanding and agreement.
• And essential too was having recruited the parents’ agreement to send the family lawyers copies of the shared letters.
• This was ‘for information’. But contacting and including the lawyers by phone and then through the letters also had a very important role in the setting up of an informal court.
• It openly framed the appointment and process within the actual external legal agencies for the particular family case.
• It also framed and drew the lawyers into a more collaborative process than they might have been used to.
• In effect I had not only recruited the parents’ own constructive involvement in a child-focused process, but they (and I) had recruited significant legal observers to monitor how the parents (and  I) behaved during it.
• This encouraged the lawyers to promote their own collaborative tendencies. In contrast to their natural adversarial training and courtroom home base, they were now in effect refereeing my collaborative work with the parents. Who knows, but they might even have learned from it!
• The implied message was: “Those with a formal legal role and remit in your case are watching how we behave in this informal process. There will be a record of how we behave going to them too. We all want to show the lawyers how well we can all do (for your children’s sake).”
• Once again, a strong constructive element was in place – an informal eye on things by formal agencies – that no one could easily refuse nor forget as a factor that brought out the best in the parents (and me).

The work

• Typically only a couple of appointments – a couple more maybe for some – would be needed to help the parents get enough progress into place for their children to benefit.
• Short of case examples and loads of professional and personal skill, you can perhaps imagine how the meetings were staged, managed and concluded. Anyway each of us has to find our own capacity and initiative if this approach is going to work.
• The expanded sense of importance through the special setting-up did indeed make the actual meetings have more of a special powerful and ritual quality – like a friendly but serious court-room with Nick as the chair, the interviewer, the carefully collaborative ‘judge and jury’ and the record-keeper too.
• The system was unfairly stacked in Nick’s favour. But his motivation was of the highest, constructive and child- and family-focused kind for the best outcome for everyone. That was Nick’s only hoped-for reward for working so hard.

In summary

I’ve described an ordinary sensible response to CAMHS referrals of children who present with upset arising from their separated parents’ conflict. It seemed worthwhile in helping the families and children. The method was an effective, authoritative, sensible, compelling, humane, engaging, informal, negotiated, flexible, structured, welcome, caring, child-focused, cheap, preventive, short-cut, proactive and collaborative arrangement … in place of the opposites of all those descriptions.

I took some risks, but by care and negotiation, I did not generate any official complaints. I only have my anecdotal evidence about how well it worked for the children and families. My purpose here is not to prove it worked, but to show the inherent prima facie rationale of how best to help children and parents in high conflict separations.

I’ve called this approach: an informal proactive court. Or: family mediation with knobs on. The point of describing it is to illustrate how, even in an ordinary service setting, it is possible to create a collaborative focus. Employing some additional authority can help.

The power of this collaborative approach was improved by recruiting the family lawyers. This positive engagement with the legal system contrasts with the strong boundary that other approaches set up between the legal and the collaborative working.

Nick Child, Family Therapist & Retired CAMHS Psychiatrist, Edinburgh