This is a guest post by Ursula Rice. Ursula is a Solicitor-Advocate and Director at Family First Solicitors. She tweets as @tweetygraffity. We hope to publish more posts about this Review in the coming days. You can read previous posts here and here.

On 25 June 2020 I tweeted that the message from Resolution needed to have a stronger focus on domestic abuse. If you are interested you can read the full tweet thread here (including an initial response from Resolution):

The report that triggered that Tweet is here… “ Assessing risk of harm to children and parents in private law children cases.”  It is a formidable piece of work undertaken by an extremely eminent set of the great and the good who do this kind of thing.

I wasn’t trying to be contentious; it’s just that it really bothers me, and has bothered me for some time, that the message from the largest family law lobby group (and an extremely successful one that has managed to change divorce law recently, to end the “blame game”) is strictly focussed on Dispute Resolution using mediation, collaborative law and other non court protocols.

The heading of the website says:

Resolution members are committed to our Code of Practice, promoting a constructive approach to family issues that considers the needs of the whole family.”

Further into the website you see that:

All Resolution members are committed to working in a non-confrontational way and putting the needs of any children first. Use our search to find a Resolution professional near you:

With a Resolution member the focus will be on helping you to achieve an outcome that works for you and for the future of everyone involved.

If you are a parent, a Resolution member will always help you to put your children and their needs first.

Our members realise the importance of helping you sort things out fairly and in a way that works for you and for all the family.

Using this approach could cost you less – emotionally and financially – and is likely to be better and longer lasting than if a court imposes a solution on you.

It is not that I think that this is a bad idea. It’s just that I think it is the wrong starting point in about 60% of all private law cases and in financial cases. Perpetrators do not want to put their children first, or balance the needs of everyone or cause less financial or emotional damage.

We are encouraged to tell women, against their own better judgement, that they should try anything but court because it is so “confrontational”

Let me break down how this approach as a STARTING point can be problematic.

Unpicking how a perpetrator operates is hard work evidentially. However non-physical abuse is even harder to cope with. We all have these cases. The other side is called a “narcissist” by our client or “manipulative, a psycho, crazy, selfish”. The client is highly emotive, frightened, doesn’t trust your ability to handle it and feels let down by a system that operates on the assumption that both parties positions are honestly made and should be taken at face value.

It can be very hard to manage a case where your client is so clear that the other party will use the breakdown of the relationship to play games, to increase expense, to gain unfair advantage and to break down resilience.

We are often presented with:- 

·       Your client will generally have tried to break up in a “mature way” but the deal she is being offered is patently unfair.

·       Blaming behaviours – being told she is greedy, she is unrealistic, not accepting means there will be no housing, only the lawyers win.

·       A blatantly non primary carer decides there will be a 50/50 shared care arrangement.

·       Circular conversations that eat away at resilience both for the lawyer and the client.

·       Consequences that are a result of standing up to the bullying (staying in the house and behaving obnoxiously but not violently).

·       Economic punishment for trying to leave such removing all the joint funds, overspending, withholding the basic amount of money needed to run the house or sending it too late to stop direct debits bouncing.

·       A late disclosure of a history of sexual abuse that has characteristics of coercion such as not stopping when asked to , carrying on in the face of nonverbal resistance ( tears, turning away, holding legs closed, unconsciousness or alcohol intake that prohibits consent).

·       Your client struggles to make decisions, to follow through with actions, their cognition and ability to process is depleted. Their self-esteem is negligible. They cannot focus.

When we pressure our clients (subtly or otherwise),  to embrace mediation, or collaborative law or a process that assumes good faith by all parties, we are colluding in the ‘gas lighting’ that they are at fault. At fault for not wanting to join in a process they instinctively know is going to cost money but may deplete already fragile resources to get what they need. We are sending messages that they should be somehow kinder, nicer, less aggressive. That smells like the Patriarchy to me.

A women’s aid/ Cafcass joint survey found that 62% of applications to the family court about where a child should live or spend time feature allegations of domestic abuse.

So, if that is the case, why do we start with a process that assumes an honesty of purpose?

The message from the family lawyers’ professional body is a laudable one. It stemmed from a desire to move away from treating family breakdown in the same way as other litigation with the win/lose mentality that does so much damage. I do not dispute that there was merit in trying to step away from a system that was in itself not fit for families. 

I am mindful that I received no training on the Legal Practice Course or training contract that helped me understand domestic abuse. What I know I have gleaned myself. As I came to observe and take an interest in, the constant flow of similar histories being presented to me by so many clients. Why, I asked myself, am I being told by women, that they have been strangled, raped, spat on, kicked, told they are ugly, thick, good for nothing, sworn at, sent passive aggressive text messages, had money withheld etc. Are these women in some kind of club to fool me for a bet OR,  is this a thing? A phenomenon that is based in objective reality. I am prepared to believe the latter.

In my work delivering training I always use the wheel of power and control (here) and ask all the delegates to tell me anonymously if they, or anyone they know, has experience of these behaviours. At EVERY COURSE, bar none,  at least 50% of the delegates stick their hands up. This is a pretty high hit rate of domestic abuse in a pool of highly educated attendees. I strongly suspect that if you took a sounding of judges in the same way, it would produce the same result. At least 50% of the people reading his article know what I am talking about.

I call for a new theme in Resolution’s work. One that will take drive, determination and resolve. We will need to re purpose our organisation to deliver family law solutions that have built in to them, the tools to deal with the behaviour we see every day. Behaviour that causes trauma to women and children primarily, to men also, but above all to society as a whole. We must build a new system that helps those that want to separate their families, fairly, but without being part soul-sapping systemic oppression of those who trust us with their family breakdown. 

To quote Ruchika Tulshyan @rtulshyan:

The problem isn’t men – it’s the patriarchy

The problem isn’t white people – its white supremacy

The problem isn’t straight people – its homophobia

Recognise systems of oppression before letting individual defensiveness paralyse you from dismantling them.

So lets us not be defensive about that fact our well heeled and influential organisation should be able to be part of the solution. We sure as hell are part of the system.

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. 

We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page

Thanks for reading!