Children 'battlefield and ammunition' as parents split

Sir Nicholas Wall said separating parents "rarely behave reasonably" and a less adversarial system was needed .

Separation was, he said, "of itself, a serious failure of parenting".

In a speech to the Families Need Fathers charity in Coventry, the judge, who is president of the Family Division, said: "Separating parents rarely behave reasonably, although they always believe that they are doing so, and that the other party is behaving unreasonably.

"People think that post-separation parenting is easy – in fact, it is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute."

Sir Nicholas said family law does not easily fit into the concept of an adversarial system where "something is nearly always somebody's fault".

"Many parents make matters worse by their disputes over their children. They forget the loyalty children have to each party," he said.

"These problems are best resolved outside the courtroom, not in it.

"Disputes over contact between absent parents and their former partners are rarely about the children concerned.

"Far more often, the parties are fighting over again the battles of the relationship, and the children are both the battlefield and the ammunition."

The number of divorces in England and Wales fell to 121,779 in 2008, the lowest number since 1975 when there were 120,522 divorces, according to the Office for National Statistics.

But half of couples divorcing had at least one child under 16, with a total of 106,763 under-16s in families where the parents divorced. More than one-fifth of the children were under five and almost two-thirds under 11.

Sir Nicholas said: "Parents simply do not realise the damage they do to their children by the battles they wage over them."

A mother who finds herself caring for the children was able to use her power over them to deny the father contact, he said.

It was "very easy for one party to say that he or she is acting in the best interests of the child concerned, and that the other party is not", he said.

"It is quite another to understand that both think they are and often that neither is."

Sir Nicholas said one concept that may emerge from a review of family law was a presumption of "shared residence" for the children when a couple separate, where they live with either parent for half the time.

But he said: "If shared parenting orders as a concept are to become the norm, the initiative, in my view, must come from Parliament."

Family court judges are divided, he said, with some thinking it recognises the increasingly important role of fathers, while others believe it is too disruptive for children.

"Shared residence orders are not a panacea," he said, adding that court-imposed solutions "rarely satisfy anybody".