I know of a primary school, stuffed full of the assorted offspring of professionals and academics, where there's a dad who often arrives at the gates in a "Fathers 4 Justice" T-shirt, ignoring the glares of his estranged wife's friends. As one parent said: "You feel like saying, 'This is helping your vulnerable little child in what way, exactly?' "
This was pretty much the point Sir Nicholas Wall, England's most senior family law judge, made this week, when he criticised divorcing parents – and middle-class ones in particular – for behaving unreasonably. Parenting under the stress of separation, he said, "is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute".
It's true: clever people devise particularly subtle and sophisticated ways to wound one another. And, as Sir Nicholas emphasised, rows about contact are "rarely about the children concerned" – they're long-running disputes between the parents in which the children become "both the battlefield [and] the ammunition".
Watching the bullets fly, while children duck, is enough to make anyone cleave to their partner. I knew a brilliant banker who attempted to have his wife declared an unfit parent when she asked for a divorce, though he had had no quarrel with her maternal skills in 15 years of marriage. A male friend has been nearly bankrupted in a custody battle because his ex-wife, funded by legal aid (although her parents are millionaires and she runs her own business), can afford to keep the dispute running indefinitely.
As one family law practitioner said to me, "There is a degree of ruthlessness that makes Machiavelli look like Mother Teresa." Even the most equable of mothers can tell querulous children with sly glee: "You don't need to go to Daddy's if you don't want to."
If children's needs are to be primary – which clearly they ought to be – we need a better system of divorce law than the outmoded, adversarial model. There is already a requirement that anyone seeking legal aid in their divorce case should consult a mediator, and this has had encouraging results. It's estimated that publicly funded mediators achieved "a full or partial success rate of approximately 70 per cent", at half the cost of going to court.
Government advisers are now considering extending the requirement for mediation to privately funded divorce cases, in order to reduce the number of contested cases. But Roger Bamber of Mills Reeve, one of the UK's leading family law practitioners (and a trained mediator), thinks they should go further, and embrace "collaborative law".
Under this model, all meetings involve four people: the divorcing couple and their respective lawyers. "At the first meeting the four individuals sign a participation agreement where you agree to be open, to negotiate in good faith and to put the children first. If anyone rushes off to court unilaterally, both lawyers are sacked." Ideally, a consultant (often a trained mental health counsellor) will be brought in to act as a fair arbiter with whom clients discuss their fears and emotions, particularly those surrounding their children.
Bamber strongly believes that time with expensive lawyers should be reduced to the bare minimum, and is evangelical about the collaborative model, citing one case where a divorce settlement took just six weeks from beginning to end. The process was so civilised that when the details were finalised, his client announced that she was cooking supper for her soon-to-be-ex-husband that weekend, as he was looking thin. In another case, the atmosphere was so positive that a stockbroker who managed assets for both husband and wife couldn't tell which lawyer was acting for which spouse. As Bamber says: "The legal profession is not known for common sense – but here we have a major outbreak of it." Let's hope the Government listens: after all, fathers wouldn't clamour for justice if their grievances were resolved before they were dragged into court.
Tags: parent particular exceedingly concerned
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