In this article I am going to discuss the impact on mental health and well-being as a result of the adversarial nature of the family court process and how family lawyers could assist and support their clients.
The nature of the family court process exhibits its adversarial nature, whether this is financial proceedings as part of a divorce or child arrangements orders. Ultimately two individuals are arguing for their desired outcome. Significantly, this conflict has worsened as a result of the increasing amount of people who have decided to go to court to resolve these issues, rather than alternative dispute resolution (ADR), which is not always fully explored. In fact, it was stated by the former CEO of CAFCASS, Anthony Douglas, that going to court is the ‘default option’ for many individuals. Consequently, this results in a third-party (a judge) making decisions about important aspects of an individuals’ family life. This might include a judge making the decision when and where a child may see their parent. In some cases, court intervention is appropriate but, as discussed, there are increasing cases in the family courts which could be dealt with outside of such an adversarial environment. Dealing with the decision made by the court in everyday life has also been found to increase the likelihood of repeated litigation, especially where one party is not happy with the outcome. Not only would this prolonged and extended litigation create hostility between parties, but it could also have a significant impact on any children involved. Children are very receptive and will notice hostility between their parents, which is only enhanced by the court process and lengthy litigation. As such, it is not surprising that this hostility could have an impact on a young person’s mental well-being.
Notably, a study by the Nuffield Family Justice Observatory in 2022 presented the detrimental impact private law family court proceedings have on children’s mental health. The study looked specifically at anxiety and depression in young people involved in proceedings in comparison to a group which was not. This data set compared 17,041 children involved in proceedings in Wales between January 2011 and December 2018 to a comparison group of 680,617 children from the general population. Although this study is limited in its findings because it is based off mental health problems reported to practitioners, the statistics suggest that the sample may actually underestimate the number of children suffering from such emotions and mental health issues. Similarly, it is impossible to directly connect the court proceedings as being the sole cause of depression and anxiety. Nevertheless, the study found that rates of depression and anxiety were 60% and 30% higher respectively in the group involved in proceedings. These findings suggest there is a correlation between mental well-being and being involved in such litigation. Findings from this study have been supported in an article by Griffiths et al, where it was concluded that the proceedings had an impact on the child’s mental well-being. This suggests that there should be support for the children who are at a higher risk of deteriorating mental health due to the influence of such disputes and litigation.
Furthermore, the term litigation does not seem to positively impact the adults involved in family court proceedings. One way to minimise the impact on mental well-being of adults could be by having representation by a legal professional or solicitor. However, as a result of public funding cuts in family law, the amount of people acting as Litigants in Person (LIP) has increased. Without representation, there is less knowledge of the processes and ADR which may be available to parties. Additionally, acting unrepresented could be significantly more stressful during the litigation itself. In fact, a study from 2015 by Middlesex University found 78% of respondents experienced high levels of anxiety when acting as a litigant in person. This is a staggering amount of people to experience such a detrimental effect on their mental well-being. From this information it could be argued that there should be some measures in place which can minimise the pressures on individuals, especially those acting without representation. Importantly, the more recent changes to the law through the Domestic Abuse Act 2021 has allowed progress in reducing such pressures for those who are LIPs and are victims of domestic abuse, some of the most vulnerable individuals who attend the family court. This has been done by removing cross examination by a perpetrator and introducing special measures in the court. A result of this is that the survivor can minimise the face-to-face contact that they have with the perpetrator in court which should hopefully reduce some of their anxieties. This means that there have been some changes to the court process which can be considered to reduce their adversarial nature, and may protect mental well-being to an extent, but this remains limited and will not benefit every family court case.
It is important to note that further recent changes in Family Law have been made which have focused on reducing conflict. The recent change following the Owens v Owens case and the new “No-Fault Divorce” moves away from the blame implied by the fault-based factors and now directs a less-adversarial approach to divorce. This is because there is no longer any party recognised as being at ‘fault.’ However, like the changes made by the Domestic Abuse Act, the impact of this legislation is limited and does not abolish the antagonism in all areas of family law. Consequently, it has been suggested by many that other areas should follow a similar, less adversarial, approach. This would hopefully be effective in reducing the stresses and anxieties caused by confrontational proceedings. One way legal professionals and bodies support this is by making LIPs more aware of ADR, such as making the information available and easily accessible on their websites. If a client is represented, the legal expert could actively protect their clients mental well-being by simply informing them of the mental health support that could be made available to them. This signposting to support has been used by family lawyers at Irwin Mitchell following the staggering number of clients that expressed mental health issues because of the litigation they were involved in.
Overall, it can be seen that the nature of family court proceedings have some negative impact on children and parties attending court. Although this may not be the sole cause of the adverse influence on people’s mental health, ensuring all individuals involved have access to the support they may need would hopefully minimise the impact the court has on their mental wellbeing.
This article was written by Beth Tait
A Family Affair 