We are in a national consultation process on reforms to our family court. Prime Minister Abela mentioned the possibility of a specialised family court, not just a specialised section. He also pondered the parameters of how the court fixes maintenance and how the country never had a formal structure for how access is determined. He also questioned whether there should be rights for grandparents, who would also have some form of access.
In light of all that, is there such a thing as the perfect family court? And, if so, what would this look like?
We need to think outside the box about how we all think about and deal with family separation and divorce. The government must promote an approach based on scientific evidence that’s truly focused on the long-term well-being of children and their families. As such, it should seek a shift from too-late, law-based interventions to a much greater emphasis on education and early intervention.
To date, our family court continues to play a major, if not dominant, role in dealing with family separation. Its practices, directly and indirectly, affect the well-being of hundreds of children and other family members.
Creating the best-possible family law court, one that treats vulnerable families with compassion and can implement the evidence of what’s best for the long-term well-being of children, is thus of great importance.
If our family court today is not fit for purpose, as many seem to be asserting, what elements are needed to create the perfect family court?
One option might be for our family court to transition into a forum for problem-solving and restorative work with the family, with harmful, adversarial proceedings becoming increasingly rare. Transforming our well-established attitudes and approaches to family separation and divorce will not happen overnight.
This requires that the state and our courts encourage and enable parents to take responsibility for answering the needs of their children, especially their emotional and psychological needs, without having recourse to judicial proceedings; but if they have not managed to do so, the family court needs, alongside its traditional role of making decisions when parties disagree, to have a strong therapeutic approach.
This implies a reconsideration of the role of the Family Court such that it includes not only the process of arriving at a final judgment but also social work support for children and parents and a judicial approach that takes account of the short- and long-term ramifications of the proceedings themselves.
I would start off with a specialisation of judges and training for lawyers and court staff, so that all concerned will be aware of the possible effects and results of adversarial litigation and the need for therapeutically oriented handling of cases involving children.
This means that judicial officers should be appointed to deal with family cases after they have received appropriate training in these areas and should also be given periodical in-service training and updates as to developments in these fields. In the absence of knowledge of these extra-legal areas, judges may not appreciate the needs of the parties as opposed to their claims and allegations. They may fail to identify their own, perhaps inaccurate, ideas about human behaviour and relationships, and they are more susceptible to persuasion by unscrupulous lawyers and so-called experts, with the possibility of harmful results for the families who seek the court's help.
Parents who are separating should obtain help in ensuring that their separation takes full account of the effects on each child and makes arrangements that will protect the children and ensure their healthy development.
We must consider the process of triage, meaning the assignment of cases that are brought before the court to judicial officers, by establishing the urgency and intensity of judicial activity that might be required.
As far as possible, all matters relating to a particular family should be handled by a single judge who is familiar with all aspects of each of the matters requiring resolution, thereby ensuring continuity and efficient use of court time. The judge is thereby enabled to deal with matters in order of urgency and importance, identify all the relationships within the family, and, over some time, observe the signs of mental health issues. Furthermore, the judge will be in the best position to track the reactions to orders and prevent manipulations.
There must be swift handling by the court since a child's perception of time is different from that of adults, and failure to deal promptly with cases involving children exacerbates the effects of stress and contact failure.
Care needs to be taken in appointing experts to assist the court, as only professionals with appropriate knowledge and experience, appointed by the court in consultation with the parents, are likely to give impartial assessments and recommendations.
A child should be allowed to express himself or herself about issues that may affect that child's upbringing, but the methods by which the child's voice is brought before the court must be carefully considered, in particular within the child advocate’s role.
It is important to fine-tune the multidisciplinary processes to ensure collaboration and coordination between the court and the psycho-social and dispute-resolution services being used by the family.
Yet, without effective methods of ensuring compliance with the court's orders and judgments, the court is deprived of credibility, and the time spent reaching conclusions is wasted.
A situation in which a court has invested time and effort in reaching a decision and that decision is not carried out by the party who is ordered to do so is intolerable.
Dr Mark Said is a lawyer