The impact on mental health for all involved in family law cannot be ignored:
- Litigants’ lives are invaded in the most fundamental manner by the State; mental health is weakened in all but a few cases.
- The long-term mental health of children who are the subject of court proceedings is significantly worsened by those proceedings.
- Lawyers and judges deal with vicarious trauma and conflict every day – what we are told about familial abuse, the photos we see, the recordings we watch.
Is the justice system coping with this, and is enough being done to recognise the impact on all involved?
We address these questions from three perspectives: the separated couples; their children; and their lawyers
The couples: Lawyers have a term for our clients’ rapidly declining mental health in court proceedings. We call it litigation fatigue. There is a marked difference between a client’s mental resilience and emotional stability at the start of proceedings and at the end. It is simply not possible to be unscathed by this process. What does the court do about this? It takes care to protect the most vulnerable parties (regardless of how that vulnerability materialises) via Family Procedure Rule 2010 guidance on the treatment of protected parties, such as how to appropriately cross examine vulnerable witnesses. It recognises, for example in financial remedy proceedings where a party’s maintenance claims are being addressed, that counselling is a valid expense or when a party claims in their Form E financial disclosure that they have mental health difficulties due to the separation, this is natural and understandable. However, the examples are few. Recognition is arguably too limited. Mental health concerns, unless impacting on earning capacity, tend to be considered temporary and given passing consideration. Courts encourage couples to exit their doors and try other dispute resolution methods – to mediate for example, or for those who can afford, to arbitrate. This can work, in lowering tension and encouraging sensible discussions, but when those fail the couple are back where they started, feeling even weaker.
The children: Arguably, the subject children are the most vulnerable of those involved in the process. They cannot control the actions of their parents or other adults involved and must deal with the repercussions for the rest of their minority and beyond. A recent study by the Family Justice Data Partnership team, published by the Nuffield Family Justice Observatory[1], looked at children involved in private law proceedings in Wales. The study reported that children involved in private law proceedings were more likely to experience depression and anxiety than their peers – 60% higher depression, 30% higher anxiety. Also, that children involved in these proceedings were more likely to go on to develop depression or anxiety than children in the comparison group, suggesting that they continue to be at heightened risk of mental health problems after proceedings. These figures, although for one part of the population, are extremely high.
Looking at both the couples and the children, we question what more the justice system could do if it wanted, or was able. This seems obvious to anyone involved in the family justice system. Sorting out the lack of proper funding is largely the answer. More judges, more hearings, fewer delays between hearings, more legal aid thus more legal support. Combined, there would be a lessening of the impact of this conflict which in turn strengthens mental health of those forced to use our justice system. Court proceedings should not be a punitive process but through the system’s inherent and worsening structural issues it unfortunately is.
Finally, let’s not forget the lawyers. As the National Association of Family Law Supervisors states on its website, “The idea that we can work continuously with other people’s conflict while remaining unaffected and unscathed ourselves is now widely discredited. Effective care of the practitioner is seen as a prerequisite to effective care of the client.” This concept of vicarious trauma means that it may not be long before legal insurers effectively force firms to provide supervision/support to their lawyers, in the same way that other professions dealing with similar accounts of trauma do, such as social work and counselling. It is not the role of the justice system to help lawyers; we support the parties, and we are officers of the court. This is a profession-specific need, but one to be viewed in the context of wider society when looking, for example, at the significant cost to employers of sick leave and the mental health concerns in society at large. Awareness is growing and it will be interesting to watch the development of the justice system over the years to see whether it survives this pressure and, optimistically speaking, becomes a stronger and better equipped machine.
Anna Shadbolt and Forum Shah are partners at Dawson Cornwell
[1] Uncovering private family law: Anxiety and depression among children and young people
