Family judge criticises adversarial approach

“If the family justice system is to have the slightest chance of dealing with cases in a timely and productive manner and to assist families in decision making concerning their children, then we all have to focus on the real issues and try to adopt a problem solving approach rather than a largely adversarial one.”

That comment by Mrs Justice Lieven in an English High Court family case judgment sums up a key problem in family court cases across the UK.

It was issued in her judgment on a dispute between “The Father and The Mother” in which the Father was seeking a 50:50 split of care of their 4 year old son and the Mother was seeking to be allowed to relocate from Nottingham to Rugby.

The judge commented that the child has two loving and caring parents but that it was not possible to resolve the case in a way that makes both of them happy. You’ll have to read the judgement to find out what was decided – we mention it only because of the above comments, which crystallise our concern about adversarial family court hearings in both England and Scotland.

Mr Justice Lieven comments that she tried during the hearing to limit cross-examination on what had gone wrong in the past in terms of communication between the parents and to stop repetition of the same points. By the end of the two-day hearing she had heard these points at least three times (as well as being in witness statements and position statements).

She comments: “The Court is not there to consider what went wrong in the parent’s relationship (limited or extensive) in the past, save strictly to the degree it impacts on the decision concerning the child in the future. Equally, cross-examination about past failings (by both parents) is very unlikely to aid better future relations in the best interests of the child.”

The adversarial process in evidential family court hearings can cause immense damage to subsequent working relations between parents. Adopting an inquisitorial process for such hearings could reduce the risk of collateral damage without preventing judges from making difficult decisions..