Is court the best place for resolving child arrangement disputes?

A recent case highlighted the difficulties faced by a growing number of separated parents involved in court proceedings.

The background

The case involved two children of primary school age. They lived with their mother and saw their father via short video calls each week. Both parents raised allegations against each other relating to controlling and coercive behaviour. The mother alleged that the father physically chastised the children and that they were fearful of him.

On 26 January 2021 the mother issued court proceedings relating to the children. An interim order followed, preventing the father from removing the children from the mother’s care or from anyone that had care or control of them (a Prohibited Steps Order). The proceedings should then have focussed on the arrangements for the children to spend time with their father.

On 30 April 2021 the court directed that the father should continue to have indirect contact with the children. The children were added as parties to the proceedings and were to be represented by a guardian. The guardian was to be appointed by Cafcass (The Children and Family Court Advisory and Support Service). (A guardian’s role is to tell the court and the parties what arrangements should be in place for the children in order to make sure that decisions relating to them are in their best interests). Cafcass informed the court that it did not have the resources available to accept the instruction and could not provide a guardian as ordered.

The hearing was in front of His Honour Judge Wildblood in August 2021. He appointed NYAS (The National Youth Advocacy Service) in place of Cafcass. NYAS is a charity and dependent on external funding. They applied for legal aid to fund the matter. A final hearing was listed for 24 November 2021. The final hearing could not take place as NYAS informed the court that they were unable to appoint a caseworker (due presumably to insufficient funding) and did not know when they would be able to do so. Faced with this information, the Judge directed that NYAS appoint an independent social worker instead.

On 13 December 2021 NYAS informed the court that the Legal Aid Agency refused to extend legal aid to cover the cost of instructing of an independent social worker (this meant that they were unable to report to the court as ordered).

On 25 January 2022, the case came back before HHJ Wildblood. Neither Cafcass nor NYAS were able to report to the court as ordered by the Judge due to the lack of resources or funding. This is a serious concern, not only for the Court system and its future operation and efficiency, but more importantly for the children and parents who are going through such Court proceedings.

The effect on the parties and the children

The father is still having indirect contact although he says that this is unnecessary. This must impact negatively on his relationship with the children if the court eventually finds that no supervision is required. The children and NYAS were discharged from the proceedings. The Judge made an order for a S.7 welfare report by the local authority and relisted the issue of interim contact before him, offering to hear the case himself (over his lunch break) in May 2022.

This case must have been incredibly frustrating, stressful and probably extremely costly for all parties involved in these proceedings. The children (who should be at the heart of these cases) were affected by the delay. The judge wanted their voices to be heard (through the guardian) but because of the lack of resources and funding this was not possible. This will have impact on the quality of the decision he has to make in due course.

The current stresses on the court system are well known. Our local courts are taking months to relist cases and delays will be detrimental to children. As a further disincentive to applying to the court, it has recently been reported that the government is considering cost penalties where parents issue court proceedings without first exploring other options in order to try to reduce the amount of cases going through the courts. There are many cases, sadly, where an order from a judge becomes necessary. The current delays and inefficiencies mean that children who need a decision to be made are left in limbo. Of course, it must be stressed that there are some cases where court is necessary because of urgency or safeguarding issues.

However, many parental disputes can be handled quickly and more cost effectively without resorting to court proceedings.

Alternatives to Court proceedings

Mediation

Family Mediation is a process which involves an independent third party (a professionally trained mediator) sitting down with both parties to facilitate a conversation to help reach decisions in relation to children and/or finances following a family separation. The process is less stressful and quicker than going to court, and can be much more cost effective. Legal aid is available if you are financially eligible. Both parties must be willing to engage in the mediation process.

The Government has recently set up a family mediation voucher scheme in response to the COVID-19 pandemic. The www.gov.uk website states that the scheme has been set up ‘in order to support recovery in the family court and to encourage separating parties to use mediation’. A financial contribution of up to £500 towards the costs of mediation will be given (if eligible) – a trained mediator will determine eligibility. The mediation voucher scheme is available (if eligible) for a matter relating to a child or a financial matter where the parties are also involved in a dispute relating to a child. More information on this scheme and how to apply can be found online.

A mediator can also directly involve children in the mediation process where it is deemed appropriate. This is called Child Inclusive Mediation. In this process, the child/children have an opportunity to meet with a mediator without their parents to set out their wishes and feelings in relation to what they want to happen in the future after separation. The mediation is confidential and the children will be able to tell the mediator how they want the information provided during the sessions to be shared with their parents.

Arbitration

The Family Law Arbitration Scheme gives parties the option of obtaining a decision in children disputes in a quick, cost effective and flexible way without the need to go through the court process (which as seen above can take months and can be incredibly frustrating). This is usually far less stressful for all parties involved. The parties can jointly decide which Arbitrator they instruct. Parties have to engage in the process from the beginning (they have to jointly choose the Arbitrator, jointly instruct him/her and both agree from the beginning to be bound by the Arbitrators written decision.

If you would like more information on the above options or would like to book an initial fixed fee appointment, please contact me or another member of the Family Team.