Law: Our Learned Friend: An end to the waiting

WHATEVER THE reason for the tragic deaths of three children and their father as reported in The Independent on 4 August, to the onlooker, if a relationship breaks down to the extent of one party denying access to the children, going to court is seen as the only way to get contact quickly. Obviously, mediation is also an option, but only the judge can decide whether arrangements should be put into place as quickly as possible - but even recourse to the courts can be far slower than any estranged parent may realise.

Problems can arise, for example, one parent can make an allegation - true or not - against the other and get care and control of the children, even on an interim basis. In cases where there are allegations of physical or sexual abuse or just a state of hostility that the parent who has custody of the children has toward the other, the judge will usually get assistance from a court welfare officer from the service which is currently combined with the probation service, to advise in deciding the competing issues between the warring parents.

This can then lead to further problems - the agency is already overworked, and if a local authority also has to be involved, arrangements will be made to send a court welfare officer and a social worker to compile a report on the situation.

And though courts will try to insist that there is a minimum delay for preparing these reports in the hope that the reports conclude that the allegations are without foundation - and so wipe out once and for all the beginning of prospective litigation over the children - in most cases the issues are clarified within weeks. Usually, however, if more detailed reporting is required. the wait can be three months, particularly with the agencies and authorities increasingly overworked.

That period of waiting is where the worst problems can arise; the separated parent will face no contact and appaling feelings of separation from the children. Some will be offered contact at contact centres, which are venues which are often run with good intention, voluntarily, but without proper supervision facilities, or any facilities at all.

And upon any report being filed, whatever the time taken, there is then the further prospect of delay in getting court time or even getting enough court time. The courts are becoming like NHS hospitals: the queue for the consultant to perform the operation is synonymous with the queue for the judge in the court: there are not enough doctors or judges, while there are more and more patients and there is more and more litigation over children.

And even when the matter finally comes before the judge, the essential reports which are often so heavily relied up on by the court to settle the case may lack any proper final recommendations or even enough indications to come to a conclusion. For the lawyers, a report without a recommendation means that there has to be a court hearing, and if a report does not give a proper analysis of any recommendations, that will just open the door for the lawyers to cross-examine the report-writers on the gaps, and the reasons for them, as they have to act in the best interests of their respective clients.

The system obviously needs to be changed, not to any radical extent because, in the current climate, practitioners are repeatedly told, there is no funding. But wherever possible, early and concise reporting on the issues which are at the heart of the family conflict, with proper evaluation for the judge, is essential.

It is only then that the parties and their advisers can ascertain whether the separation of one parent from the children, far from being a necessity in the first place, was the result of the whim of one parent against the other, and that unnecessary separation can be ended much more quickly. That would prevent a repetition of such tragic news stories in the future.

Jeremy Rosenblatt is a

family law barrister.