Parenting problems are not usually legal disputes, so why do so many parents go to court?

Imagine a world where parents who happily lived together sent each other letters through solicitors in an attempt to decide who should take time off work if the children are ill and unable to go to school. Imagine if the same parents instructed lawyers to send letters to each other to sort out how much time their children should spend with each of them during the school holidays. Now imagine the same parents asking a judge to decide which school their children should go to?  It would be crazy wouldn’t it? Yet as soon as relationships break down, that’s precisely what many parents end up doing.

Courts are not designed to resolve parenting problems

Courts have been around for about 900 years. They are far from perfect and quite unsuitable when it comes to resolving parenting problems. Even the courts’ own website states “It’s doubtful that anyone asked to design a justice system would choose to copy the English and Welsh model”. Why can’t courts help? Because parenting disputes are not, on the whole, legal disputes.

Parents don’t need lawyers to make decisions for them

The law is clear. Children are entitled to relationships with each of their parents (with a few exceptions which are irrelevant in the overwhelming majority of cases). Parents don’t need lawyers to explain to a judge that their child should be allowed to see them. The arguments in the family courts are rarely about the law and mostly about the detail of the proposed arrangements: when, where, how long, how often and so on.

The law doesn’t have the answers

The law doesn’t provide the answer in many parenting cases. It’s up to judges to decide. Judges are allowed wide discretion. This means that the outcome is never predictable. And I mean never. Ask a lawyer to bet their home on the outcome and they wouldn’t because they know that judges have their own views, can be unpredictable and can make poor decisions.

Help with communication is what most parents need

The parenting disagreements I come across are usually communication problems. Courts cannot help parents improve their communication. In fact, court decisions help make the problem worse by allowing the parents to parachute in a judge whenever they have difficulty agreeing. Judges find that they often see the same parents over and over again.

Mediation ensures parents keep control over their children’s needs

This, and the damage caused to children whose parents are arguing about them in court, are two of the  reasons why the government supports the uptake of family mediation  in place of solicitors, barristers and courts for most parenting disputes. Mediation helps parents to improve their communication. Mediation helps parents make their own decisions about their children. Mediation can be seen by children as a positive way for their parents to find help, not destructive like the court process tends to be.

In short, if the family courts’ outcomes are so predictable, why would anyone need to use them? Only a crazy disputant would go to court if they knew the court was going to make a decision against them. By the same token, as the outcomes are unpredictable, why would you risk going there? Why wouldn’t you try something over which you have control instead. Mediation for example.

I am Stephen G Anderson and I am a professional mediator. Online and off.

Stephen G Anderson, family mediator

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