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How can a ‘good lawyer’ help a client have a ‘good divorce’?

It’s Good Divorce Week in the UK and the focus has been on the (worryingly high) numbers of separated couples who say they were not offered advice by their lawyer about how to put their children first.

But what about those lawyers who do tell their clients to put their children first (of which there are many) but who find their advice falls on deaf ears?

Isn’t this one of the most frustrating parts of the job? That feeling of impotence as you suggest your client does all the right things. And then they go and do the exact opposite.

‘The best interests of the child’

Isn’t part of the problem the wording of the law? Generally speaking, the message from the legal system is that (where it needs to get involved) decisions will be made on the basis of what is ‘in the best interests of the child’.

Uncontroversial, right? But while there are some situations where what is in the best interests of the child is blindingly obvious, there are a multitude of situations where that isn’t the case. Because we all have different ideas about parenting.

It reminds me of when our kids were babies and we used a sleep consultant to help us ‘train’ them how to sleep well. That involved a few days of what felt like torture for me as I didn’t immediately go to them when they cried and had to wait a few minutes. My husband felt a little more comfortable with those difficult minutes and was able to ride it a little easier than me. In our situation, our kids soon settled into it and, with the benefit of hindsight, it absolutely turned out to be the right thing for me and our family. We’ve since recommended that sleep trainer to friends and, for some of them, it absolutely wasn’t the right thing for them. For some people, they don’t believe that sleep training is in the best interests of the child and they do believe it causes emotional harm. Others take a different view.

It’s all down to different parenting styles.

There are so many examples of this. Some parents believe in being slightly tougher in their discipline. Perhaps withdrawing treats or using time outs. Other parents believe time outs and other, perhaps harsher forms of discipline are too punitive and cause emotional harm to kids.

Worlds apart

The problem comes if/when the couple breaks up and the law gets involved. The law gives a (false) impression that it is possible to arbitrate on what is in the best interests of the child. Lawyers across the country spend hours every day writing letters about this stuff. Misinterpretations abound.

Issues like a stricter approach to discipline can sound/seem much worse when that is happening in your, now estranged, partner’s new house and is being reported back to you by your child. (I’m not talking about issues of safety and child welfare here, which obviously are paramount.)

Decent family lawyers spend an inordinate amount of time telling clients that the legal system is not the right forum for these disputes.

Home truths

But, what can we really do to help this message hit home?

Tell your clients there is a really high hurdle to reach for the court to even be interested in getting involved in such disputes.

Tell them that most disputes are about parenting styles and they need to be worked out by the couple, possibly in mediation, with the help of collaborative lawyers etc.

As depressing as it sounds, disabuse them from day 1 in your relationship of any notions they might have about what ‘the law’ can do for them.

Tell them about the Family Solutions Report and the co-operative pathway (as opposed to the safety pathway) down which many family law cases need to travel.

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Emotional translation

Even the term ‘family law’ creates the impression that there is an ultimate adjudicator who is well placed to determine what are often psycho-social and communication issues (or, in normal person’s language ‘human problems’ rather than legal problems).

We’d be better off describing the present system to clients not as a solution-giving process but as one that can only attempt to facilitate communication between parents through a variety of means.

Family lawyers working in the present legal system could do worse than to explain their job as more akin to mediators rather than the traditional idea of lawyers.

Tell your client from day 1 that your relationship with them needs to be collaborative. It’s not about you being the expert. It’s about you being a guide to the multi-layered family justice system. It often cannot offer them ‘their day in court’. It can, however, offer them ideas for how to navigate disputes with their ex. It can assist them in their communications. It can help them to find imperfect yet workable ways forward with their ex.

The family justice system is there to deal with the most important issues in our clients’ lives – their children.

And yet nothing about it is perfect.

Family lawyers on the front line are often the bearer of this bad news.

It’s a difficult message to give but far better to do it from the outset than later down the track.