A fractured system

On February 28, 2018, the Family and Children Division (FCD) of the High Court was established.

Initially, the only Family Court in Trinidad was located in Port-of-Spain. However, we now have the benefit of a second Family Court in Princes Town. Notably, there is also a Family Court in Tobago.

The intent in establishing the FCD was to create a more holistic problem-solving environment, which was required in matters pertaining to families and children.

In so doing, these matters would move away from the adversarial approach usually adopted in civil and criminal matters and instead offer the parties the option of having attorneys and judges guide them towards settlement and/or resolutions that were best suited to the needs of these persons who were in the midst of a vulnerable period in their lives.

The FCD offered and continues to offer access to mediation, counselling and supervised access in instances where it is required. Necessary services are provided to ensure that both adults and children are able to receive the required assistance in coping with the effects of divorce and other family matters which can find themselves before the courts.

In an attempt to make the system accessible, cost-effective (to the litigant) and less daunting on the persons who are dependent on the system, the Family Court allowed for divorce petitions and applications to be filed directly by the litigant.

Further, the litigant is allowed to appear self-represented and deal with their matters without the burden of legal fees.

While it may be unnerving for some people to represent themselves, there are persons who have done so and have performed remarkably well.

The introduction of the FCD, particularly with regards to the Family Court, felt like a breath of fresh air: a means of having broken families resolve their differences without going to war, the ability to mediate and discuss proper solutions that benefited children who now found themselves in a single-parent family and, importantly, saving judicial time and cost.

Sadly, I wonder whether the system is now living up to the expectation. Our newspaper has been covered with articles of children who have surpassed expectations in the CSEC and CAPE examinations.

There are stories of endurance, hope and adversity, but with the key factor being that somehow these children overcame it all to succeed. I found these stories to be motivational and heart-warming.

However, there were stories that didn’t tell the extent of the trials and tribulations faced by children. There were stories that were not reported. In these stories, the children also rose above various adversities and performed remarkably well. These are stories of a child’s endurance which became necessary due to an adult’s bitterness, and these are the ones that show the fractures in our system.

The stories that cannot be covered in our newspapers are the stories of the children who got the amazing results and whose parents cannot afford to send them to the tertiary institution of their choosing or pursue the degree of their choice because the parents are too busy fighting. There are parents now considering the need to knock once more on the courts’ doors as the other parent refuses to assist with new schoolbooks, fees, uniforms etc.

Added to this, are the parents who do not believe they should spend money (even though it is available) to fund their 18-year-old child’s tertiary education because

(a) a court order didn’t require them to do so

(b) the children are adults and

(c) they believe the other parent should foot the bill. These parents have one thing in common, they are the product of divorces and our family court system.

Slowly, but steadily, the Family Court has morphed back into an adversarial environment. Letters are exchanged between opposing counsels at a rate that can make your head spin.

Every alleged incident, infraction, offence, harsh word, temper tantrum and opinion is cause for issuing a strongly worded letter engineered to inflame situations and not resolve issues.

Matters before the court, in some instances, have long adjourned dates, perhaps due to the number of family-related matters being filed every day. There is no quick relief for payments for the maintenance of children or even for contempt applications against parents who refuse to contribute. Some persons are easily mocking the system by continuously requesting adjournments all meant to delay and deprive the other party.

Mediation no longer appears to be a means of resolving issues or attempting to solve problems; instead, mediation has become a forum for exchanging bitter and hard words.

Unfortunately, the attorneys who attempt to discuss the need to mediate, meet in the middle and solve problems are no longer viewed as persons who are doing their duties towards their clients and the children, who are the voiceless pawns in these matters. Instead, these attorneys are sometimes viewed as weak and incapable. After all, divorce means war. Yet, they fail to realise that no one really wins in this particular war.

The system was designed not only to serve the needs of litigants but to ensure the welfare of the child. It seems, however, that the system has become somewhat overburdened by those who do not truly appreciate the need for a different approach in family matters.

Our system needs to be repaired, as we are doing a grave injustice towards our children. I know a child who just did fantastically well and her mother is still in court trying to get assistance for the extra tuition she needed to complete CSEC. I know another child who just performed wonders at CAPE but will not get to pursue tertiary education in the way she envisioned because a parent refused to assist. These are children who have been stuck and let down by the system and a parent for far too long.

Pavitra Ramharack is head of chambers at Pavitra Ramharack Attorneys at Law and can be reached at [email protected]