Resolving disputes regarding arrangements for children

Following the recent lecture from the President of the Family Division, Sophie Key, Family Solicitor at Hatch Brenner, looks at why we should consider alternatives to the Family Court for resolving disputes regarding the arrangements for children.

Last week, the President of the Family Division and Head of Family Justice, The Rt Hon Sir Andrew McFarlane, gave a public lecture subtitled ‘Almost Anything but The Family Court’. The basis of his speech was to suggest and encourage separated parents (in cases where the Court’s protection from abuse is not needed) to try “almost anything” before involving the Family Court. For us, as family law practitioners, we understand the President’s attempt to divert cases away from the Court. For parents, the Family Court may be seen as the solution where an agreement about with whom children live and how much time they spend with a parent cannot be reached.

Why would we, family lawyers, encourage parents who are struggling to agree the arrangements for their children to keep out of Court?

‘No Order Principle’

Firstly, it is worth noting the legal position in relation to the Court’s role and, in particular, the ‘no order principle’. Ultimately, the Court will only involve itself in families’ lives if absolutely necessary. If there is a possibility that parents can resolve the arrangements for children between themselves then the Court will encourage this and, indeed, may adjourn any Court proceedings to give them the opportunity to explore alternative options such as mediation.

Conflict

Family lawyers, particularly those members of the family law practitioners’ organisation, Resolution, work hard to ensure proceedings are conducted in a conciliatory way. However, due to the adversarial nature of Court proceedings, it is often inevitable that proceedings may result in ill-feeling or acrimony between the parents. Court proceedings are very rarely a positive or beneficial experience for parents and clients often report the process as being very stressful.

Court proceedings can be damaging to children, particularly if they are involved (for example, by meeting and talking with the Family Court Advisor), or if parents discuss the proceedings with them. There is also a risk of harm to children as a result of parental conflict, which can be exacerbated by Court proceedings.

Delay

We are experiencing unprecedented backlogs in the Family Courts. It is not uncommon for family hearings to be cancelled at short notice due to a lack of judicial availability. On average, nationally, it is taking 44 weeks to conclude a children application. We act for clients in Court proceedings in Norfolk and across the country where the length of time from the application being submitted to Court and the case being determined by the Court at a final hearing far exceeds one year. For one of our clients, the Court decided in mid-May 2022 that there should be a final hearing to decide the arrangements for the parties’ young son. The final 4-hour hearing has been listed at the end of March 2023, 14 months from the date of the father’s application. The delay is due only to the lack of Court availability.

On a recent urgent application to enforce a Child Arrangements Order (following the mother refusing to allow the children to spend time with their father, in breach of the Order), the Court listed the initial hearing three months after the date of the application and a review hearing nearly nine months later. The Family Court is certainly not a ‘quick fix’.

Cost

Court proceedings are time-consuming and can be a more expensive route to addressing disputes regarding the arrangements for children.

Alternatives to Court

Informal or ‘Kitchen Table Agreements’ – arrangements agreed between parents direct without intervention from the Court or third-party professionals. Such arrangements often better meet the children’s needs as they are decided by those who know them best – mums and dads.
Mediation – it is a requirement of the Family Court that a mediator should undertake a suitability assessment before a person can apply to the Court for an Order, such is the Court’s support of alternative dispute resolution and the benefit of mediation. Mediation is a process whereby the parties meet with an impartial mediator to attempt to agree the arrangements (this can be in-person – separately or jointly – or virtually). Funding may be available through Legal Aid (means tested) or the Ministry of Justice’s voucher scheme.

Hybrid mediation – where the parties’ lawyers are present for some or all of the mediation.

Child inclusive mediation – the mediator will meet the child separately to ascertain their wishes and feelings and, if appropriate, to feedback to the parents to assist the negotiations.

Round Table meeting – meeting with parties and lawyers present.

Arbitration – both parties agree to be ‘bound’ by the decision of the arbitrator (similar to the role of the Family Court Judge but avoids the delay of Court proceedings and provides autonomy regarding the choice of ‘judge’ and venue).

Family therapists/consultants – offer support before and during a separation and can provide therapeutic support jointly or separately.

Online resources – there are various resources available online to assist parents in agreeing arrangements and communicating with the child’s other parent (such as parenting Apps)

The Family Court is integral to the family justice system and is necessary in situations where it is simply not possible for parents to agree arrangements (or where one party requires the Court’s protection, for example, in cases involving domestic abuse). For other cases, parents should try to exhaust all other options before turning to the Family Court.

If you would like to discuss the arrangements for your children or alternatives to Family Court proceedings or would like advice in relation to any family law matter, please contact our Family Team on 01603 214 220 or email [email protected].