THE BLOG

Divorce: Judges Must Embrace A Different Approach

04/08/2017 15:38 BST | Updated 04/08/2017 15:38 BST

Those who see family court processes as cold and clinical might have had cause for a double-take late last month, when a judge published his verdict in the form of a letter to a teenage boy at the centre of a separation case.

The letter, from Mr Peter Justice Jackson, sent to a 14 year-old given the fictitious name of Sam, outlined the judge's reasons for denying the boy the outcome he sought - to be allowed to move to Scandinavia with his dad and, if he wasn't, what the contact arrangements might look like in future.

The verdict caught attention, understandably so. It was written in a warm, human way. The letter struck a very personable tone which seems, on the face of it, pitch perfect for a young person.

But let's not be deceived by the slightly novel approach here. Make no mistake, it's going to be very hard for Sam to digest the way the court saw his father. The language and delivery of the verdict may be worlds away from what we expect. Yet the basic fact that again here is a judge handing down a life-changing verdict to a young person based on evidence he accrued during a long and expensive court case.

On the face of it a fuzzy and humane approach, yes, but that doesn't alter the fact that as ever in divorce and separation cases that go to a court, parents' and children's futures get determined by a judge: the one person on the scene who knows least about the family.

I say it's high time for the judiciary to become more creative and vocal in its efforts to avoid court battles that expose the dirty laundry of a separating family, often in the full glare of the people most affected: the children.

Here's the thing: Judges already have powers to direct people who come before them towards alternatives. There is capacity within the Children and Families Act to order couples to attend a Mediation Information and Assessment Meeting.

A couple of years ago National Family Mediation was awarded a grant by the Department for Work and Pensions to develop an in-court mediation pilot programme. Our dispute resolution experts, based on hand in a sample of family courts, managed to settle cases just like this one in a much more constructive and amicable way.

Crucially they avoided families involved having all their lives laid bare before a court. Many had already suffered years of court room squabbles but mediation helped them reach dignified agreements: settlements that were fully supported by the judges concerned.

Here's just one example: After over 50 court appearances (yes, fifty) which had failed to resolve divorce settlements, 'John' and 'Amy' were ordered by the judge to attend mediation to try and resolve conflicts about their 10 year old daughter. The levels of conflict were severe and it had been expected the next steps would involve care proceedings. Conflict and stress between John and Amy were sky-high: communication extremely poor. Yet things dramatically changed after just three mediation sessions, and a settlement was agreed.

The child had independent representation just like 14 year-old Sam but the outcome was very different for them. They were all able to quickly put the battles behind them and move on with their lives - and with their new found negotiation skills. They've not been back to court since.

We still await word from the DWP about a national roll-out of that in-court mediation programme that could transform the lives of thousands of separated families. And think of the money it could save the taxpayer.

Transformative change could be a few heartbeats away, as long as the will exists. Judges and courts could manage their parenting, property and money dispute cases in a fresh way, using their existing powers to better effect, whilst seriously protecting the families' right to a private life.

A novel approach to writing a verdict is one thing: but it's time for judges to use their imaginations in a completely different way.