With divorce leading to suicidal tendencies in children, and Canadian research suggesting that divorce may double the risk of children having a stroke in their adult years, should the legal profession remain the 'gatekeepers' to the divorce process?
In a divorce survey by Mischcon de Reya, one in five parents said that their primary objective during separation is to make the experience "as unpleasant as possible" for their former spouse. Half of the parents involved said that they had sought a day in court to haggle over residency arrangements despite knowing it made matters worse for their children. A quarter of parents said the process traumatised their children so much that they self-harmed or were suicidal. Between 15,000 and 20,000 couples go to court to resolve child access disputes each year.
Should it be left to government and the legal profession to be solely responsible for trying - so far unsuccessfully - to improve a situation that leads to children being so unhappy that they feel like killing themselves, or in later life becoming at greater risk of having a stroke?
Over a year ago, I was called in to the Ministry of Justice to chat with their press office about how the Starting Over Shows (www.startingovershow.co.uk) are providing a platform for mediation and collaborative law - both ways of reducing the risk of a combative approach to divorce. I made my point that it is essential to deal with the emotional fall-out from relationship breakdown; that inspiration and hope are needed if people are to respond well to mediation, as well as good practical advice.
Overstretched family courts, costing millions in public money in Legal Aid and court time, are making the government look for better ways forward. But how are we to empower parents and encourage them to put their children first, when the whole process of divorce is so dis-empowering, overwhelming and downright scary, especially to those who feel forced unwillingly to take matters into their own hands?
"Why is it that we aim to encourage parties to put the past behind them and yet we start by insisting that 65% present issues of fault?" This is the view of Collaborative Lawyer James Pirrie of Family Law In Partnership: "Our laws are now almost 40 years old (the '73 act was a slight remodelling of the '69 act); what was 'creative' back then has become destructive now. If we are so aware that children face fall-out where their parents' separation is handled badly, why is there no government support provided for parenting information sessions?"
When even some lawyers are calling for change, why are the general public not campaigning for a less aggressive way forwards through divorce? Is it that we are just so used to handing over responsibility to others? Just leaving it to the government to make finding out about mediation mandatory before choosing your route through divorce, is just not enough.
And what about those children that this process is ultimately designed to help - how do they fit in? How will their voices be heard?
Perhaps part of the problem, is that some of the legal profession are trying to remain the gatekeepers to the divorce process, rather than actively encouraging couples to stop expecting their lawyers to sort it all out for them, and to take full responsibility for the process themselves.
A divorcing couple will approach separate lawyers, often receiving conflicting advice, and then hope for a 'cure' from the illness of divorce. They treat their respective lawyers like doctors who have given them a bottle of pills, whilst the patient continues to eat badly, drink and smoke too much - then wonders why they never seem to stay healthy for long and blames the medical profession instead of themselves. They bemoan the fact that the divorce process takes years longer than they ever imagined and costs them most if not more than the value of their joint assets, yet are unable to sit down and talk with each other and find a better way forwards.
Of course, to create communication in a broken relationship is tough and it does take help and support - but many divorces begin amicably, and only become soured as the process takes hold. Sadly, the existing system does little to improve this situation - many claim that it actually encourages it.
Sandra Davis of Mischcon de Reya says that: "The millions spent on Legal Aid and running the courts could be better spent educating parents about their children's needs and how to avoid long-term disputes." But should the government or the legal profession be leading the way on such a sensible initiative? Looking at their past failures to achieve such an admirable goal, should there not be other, more independent organisations getting actively involved?
I believe that it is not government and the law that needs to lead the change, but that this is the responsibility of us all: As James Pirrie warns: "We need to get to the point where parliament is no longer frightened to deal with this crucial area because of what the Daily Mail says - it was effectively responsible for the abandonment of the 1996 reforms."
Whilst we create structures to 'resolve' the problem of a divorce system that costs misery to families and millions of pounds to the State, we should also work harder to educate and enlighten. To speak of improving the welfare of children whose parents are divorcing yet continue to support laws that say it's absolutely fine to hit our own children - as long as its not too hard - is somewhat bizarre. If I got cross with an adult in a shop and slapped them, without causing bruising, I'd quite rightly be arrested - but not apparently if I 'smacked' my child!
This is not to say that we don't still need the lawyers - but we need to be more aware of the different legal services on offer, and use those choices wisely. For divorcing couples to have no idea how the collaborative process works, or think that mediation is no more than a tick box for getting legal aid, but then expect their lawyers to rescue them from their divorce nightmare without taking any real responsibility for the process themselves, is unfair. It is up to us to ask questions and find out what choices we have, and then choose the right set of professionals to help us. I would expect my plumber to fit my heating system, but I would not expect them to help me decide between having a wood burner or a combi boiler - my plumber's not the one whose going to be sitting in my living room on a cold winters night.
Is it not time that parents themselves led the way in divorce reform, by investing in pre-nuptual agreements that are updated regularly, created with the help of mediators and even life coaches so that they become a vision of a positive future for the couple, with a sensible 'if it doesn't work out' provision for what would happen next? After all, we don't assume we are going to die tomorrow just because we protect our families by creating a Will. Let 'pre-nups' become a mission statement for the couple and their children instead of simply a legal and financial document in case everything 'goes wrong'.
By taking more responsibility for the whole process of marriage as well as divorce - accepting that it is an emotional and psychological journey and not just a set of legal forms, is vital if the current situation is to improve.
The parent/children resource page on my www.sosvillage.org site received a comment recently from Libby Rees - whose parents went through a bitter divorce. As a child she developed strategies to cope which she shared in her published book "Help-Hope-Happiness" to help other children deal with the stress and trauma of parental breakup.
The children are already doing all they can. Is it not time for us parents to fight for a better way to change from a 'living together' to a 'living apart' relationship without causing emotional and physical harm to our children, which if a similar level of harm were caused to us by an employer, we would be suing them through the courts?