It is dangerous to under estimate the importance of how we resolve disputes relating to the welfare of children when couples separate. The hard pressed family law practitioner may not welcome the fact that how they handle a particular case may affect society in the future but there is the real possibility that it will.
For better or for worse many relationships fail and often there are children involved. Some parents are able to sort out what is best for their children in such a situation themselves. Others consult solicitors and their lawyers negotiate agreement. In a minority of cases the courts require to adjudicate.
In Scotland the over-riding principle, if there is to be a judicial decision, is "what is in the best interests of the child". Over the last year or so there has been a suggestion in England that this principle might be eroded. There is the suggestion that when parents separate each parent should have a "meaningful" relationship with the child and it has been hinted that this principle should be pre-eminent. Pressure groups have argued that the long standing presumption that children are better residing with their mother is flawed and that for too long the courts have favoured the maternal side when reaching decisions.
There is ample evidence to show that if parents do not focus on their children's needs at the time of separation lasting harm can be caused and the psychological damage that is brought about can affect generations in the future.
To add to this, in Scotland there has been high level judicial criticism of the way some cases involving children have been handled. It has been pointed out that cases lasting months if not years, repeated child welfare hearing and the employment of numerous experts, the cost of which is funded by the public purse cannot be the best way to decide what should happen to a child when their parents separate. The Legal Aid Board is burdened with a high number of applications for this type of case and the courts are clogged up with the volume of cases they have to process.
There has to be a paradigm shift in the way we process these cases. Steven Raeburn was kind enough to interview me a year ago about my involvement in collaborative law. Since then my collaborative practice has developed and I have become more involved in collaborative cases which involve the welfare of children. I am convinced that in appropriate cases the collaborative approach will assist children in surviving the process of their parents separating and will also reduce the burden of these cases on the courts.
My attention was focused by a fascinating discussion on the message board of the website of IACP (International Academy of Collaborative Professionals). The discussion was between lawyers, psychologists and academics. There was a general view that at the lowest common denominator adversarial lawyers cross examining mothers and fathers to expose their weaknesses as parents is not likely to foster relationships for the future. Arguments about who the principal carer should be and how much time a child can be expected to stay away from their attachment figure are important but are not the whole story. The general expressed belief that children benefit from having a close relationship with both parents seems intuitively correct but there will be circumstances where it is not.
But all of this seems a million miles away from Medicine Hat but the truth is different. Medicine Hat is a small city of 50,000 people. They have had an active collaborative group there since August 2000. In effect they have removed family law from their court system. By 2003 the volume of family law court had reduced by 85%. After training the lawyers in Medicine Hat 25 lawyers were trained in the neighbouring Province of Regina Saskatchewan. The process spread quickly there too. The experience seems to indicate that collaborative law works well in smaller centres where the majority of solicitors become involved. Interestingly reports are that there have been very few failures and that the vast majority of cases have resolved.
Collaborative law is an inter-disciplinary process. It is not just about lawyers. Professionals from other disciplines are also trained in the process. While parties are represented by their own collaboratively trained lawyer, in cases involving the welfare of the children each client would have their own coach who is in fact a psycho-therapist, to help them through the process. There would also be a neutral child specialist involved to advise about the welfare of the children.
Very often after the first four way meeting and the solicitors and their clients have had a chance to explore issues, the clients can then consult with their coaches and the child specialist can meet with the kids. At the next meeting all parties can be present and can discuss what is best for the children going forward.
Remember that an essential tenet of the process is that everyone involved agrees that the matter will not be going to court. A participation agreement is signed at the beginning, not just by the client but by the solicitors as well. If an agreement is not achieved then the parties can still litigate but not with the lawyer who represented them during the collaborative process. At the beginning everyone is buying into trying to sort matters out and importantly to let the parents themselves decide what is best for their children. But, they are not making these decisions in a vacuum they are receiving advice from their coaches as to their own feelings about the situation and they are also receiving help from the child specialist.
If a relationship breaks down because one person has had an affair with someone else then emotions can run high. The reason for the breakdown of the relationship should not affect the decisions made in relation to the children but very often they do. Parents negotiate with each other in the adversarial system trying to get an advantage over the other parent. They believe an aggressive approach will help them win the battle. People who would normally shirk away from acting in such a manner become fully engaged. They want their own specialist to tell them that their children should be with them. They instruct an expert to do just that. The don't want to hear what is best for their children and ultimately what they want is what is best for themselves.
There has to be a recognition of this. Professionals who are trained in helping children through difficulties would be deployed. I am aware that many psychologists who are instructed by one party to prepare a report are not comfortable in approaching the situation in that way. Their inclination is to try and examine the situation and find out what is best for the child, whether or not that supports the parent who has instructed the report.
Collaboration avoids all of that. It allows parents to decide what is best for their children and it also allows them to make an informed decision. If conducted properly, it lets children maintain a relationship with each other which will benefit the children in the future. It is not a "fluffy" process that is only for straightforward cases. It can be and is used in difficult cases as well.
For the process to be successful all the professionals have to be trained in the collaborative process. They have to understand that in helping the family reach agreement about welfare of their children they are helping their own client. The non-lawyer specialists will help to diffuse the emotion and anger that the separation has brought about and will provide a platform for the parents to decide themselves what is best for their children.