Sorting parental disagreements outside Court

Is court the most appropriate option for parental disagreements in relation to children? – Not always.

When I first qualified as a solicitor nearly 25 years ago the Children Act 1989 had recently come into force, reforming the way the courts approached disputes and issues relating to children, both during divorce and also in unmarried situations. Prior to the Children Act the court would routinely make orders for ‘custody’ and ‘access’ as a divorce progressed, whether the parties were in dispute or not. The Children Act (which is still followed to this day, with various updates along the way) changed the names of custody and access to ‘residence’ and ‘contact’, brought in the ‘no order principle’ (an order in relation to children should only be made if needed) and reinforced the concept of the ‘child’s welfare [being of] paramount importance‘. Essentially the court’s fresh take (as it was then) brought in a far more child centred approach.

Since then terminology has again changed and we refer to ’child arrangement orders’ instead of contact and residence (so moving away from more ’possessive’ wording) and approaches to family law have encompassed alternatives to the court, such as mediation and arbitration in order to resolve parental disagreements.

Arbitration is more comparable to court proceedings but involves private instruction of an Arbitrator to act in the role of Judge. One advantage of Arbitration is speed, which can be all important when dealing with a dispute in relation to children. There will still of course be directions in relation to experts reports, which can take time, but once those reports have been undertaken the private nature of Arbitration means it is far more likely that an appropriate date for a further arbitration hearing can be obtained in a reasonable time period.

Sir Andrew McFarlane, president of the family division, has referred to the family courts having to “run up a down escalator” to keep pace with the large increase in the numbers of children cases being heard by the courts. “Everyone is working flat-out but delays are creeping into the system……..Delay in decision making is likely to be contrary to a child’s best interests.”

There is currently a review of the overburdened court system under way and it seems clear that alternative methods of dispute resolution are often more appropriate and need to be used in many cases.  Indeed, when addressing a meeting of the Family Drug and Alcohol Court Sir Andrew McFarlane referred to the benefits of alternatives to traditional court proceedings and the importance of striving for “the ‘stickabilty’ of the outcomes, [and] the ‘durability’ of the arrangements made”.

Mediation is an option that can be particularly helpful in reaching resolution in respect of parental disagreements in relation to children arrangements, as it allows both parents to talk in a safe space without the fear that their words will be used against them.  Often points of dispute can arise from seemingly unrelated entrenched issues that may not initially be apparent but that can surface through discussion and exploration of the issues with the independent and neutral mediator.  However, both parents have to be prepared to commit to mediation and this can be therefore be an obstacle.

A Working Group produced an initial report, relating to the review, in June 2019, and this contains recommendations – discussion was then invited and there should be further feedback shortly.  The report is detailed and comprises 91 pages.  It does however recommend “that Local Family Justice Boards should now seize the initiative in creating local alliances of services (or developing existing alliances) to provide integrated support for all families experiencing separation.”  It also discusses in some detail the need to increase the take up on mediation and ponders on the way to do this.  It will be interesting to see the outcome of the ongoing review, but it is likely that greater focus will be placed on alternatives to the traditional court process both to speed matters up and allow for a more appropriate resolution channel in many cases as well as to try to ease the court bottleneck.

If you are struggling with parental disagreements between you and your ex-partner and you would like to discuss any of the issues raised in this blog, please contact us for more information.