More splitting couples should resolve disputes outside of court, judge says

Sir Andrew McFarlane, president of the Family Division in England and Wales, said too many couples split up through the courts.

23 July 2022

More couples who are splitting up should settle their dispute outside of court, a senior judge has said.

Sir Andrew McFarlane, president of the Family Division in England and Wales, said too many couples take their cases through the courts where hostile language can make things worse and harm children in the process.

He also said the family courts were “fully stretched” and “delay itself is not helping”.

Family case shakeup
Sir Andrew McFarlane (Courts and Tribunals Judiciary)

In an interview for BBC Radio 4’s Broadcasting House programme on Sunday, Sir Andrew said: “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 safe guarding.”

Family courts deal with cases including divorce and disputes between estranged parents, marital breakdown, and handle issues including parents’ contact with children and financial arrangements – as well as some matters relating to domestic violence such as non-molestation orders which aim to stop harassment between partners or ex-partners.

The Family Division is a section of the High Court which hears the most complex cases, often where court consent is needed for important decisions relating to children.

Sir Andrew added around a fifth of rowing parents “would be better served by, at least first of all, trying to sort it out themselves in other ways” and that children may be harmed by action in court.

He continued: “It is certainly recognised that to have a dispute that runs on in the court is highly likely to (harm) the child… and 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.

“And the idea is to provide a wake-up call to the parents as to the impact of what they are doing on their child.”

Sir Andrew 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 Kramer Vs Kramer and well… 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 hinted at greater transparency in family courts so journalists could more freely report on cases.

Reporting restrictions and contempt of court law strictly limit what journalists can publish about family court proceedings.

He said: “I think that what the family court does on behalf of society is very important. And I think society generally needs to know more about what we do.

He added: “And I think if I was a journalist I would be very careful at the moment about reporting family cases, because the law of contempt does engage with what goes on at a private hearing and part of the proposals I’ve made is to clarify that and reassure journalists as to what they can do, and what they can’t do.

“In short terms, journalists would be able to come into court and be able to report what they see and hear without naming any of the people involved, so they’re shedding light on what we do, but not who we’re working with.”

The full interview will be broadcast on Sunday morning at 9am.

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