An Alternative To The Swamped Family Courts

Written by Jane Bridge

The sudden arrival of the Covid-19 pandemic in early 2020 caused great concern that some parents would take advantage of lockdown to put barriers in the way of their children spending time with the other parent. In March 2020, the President of the Family Court issued guidance to say that in spite of the lockdown rules, 'Where parents do not live in the same household, children under 18 can be moved between their parents' homes...The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child’.

On 25th September, His Honour Judge Wildblood QC, the Designated Family Judge in Bristol, hit the headlines by highlighting the ever-increasing number of trivial private law children applications being brought to the Family Court for adjudication. In a hard-hitting judgment he had this to say on behalf of himself and his colleagues:

‘The message that we wish to give is that this type of litigation should only come before a court where it is genuinely necessary. That is especially so where lawyers are involved, since they can be expected to steer their clients away from court except where necessity otherwise demands.’ .....The judges at this court have an unprecedented amount of work. We wish to provide members of the public with the legal service that they deserve and need. However, if our lists are clogged up with this type of unnecessary, high conflict private law litigation, we will not be able to do so.’

He gave examples of applications that amounted to parents asking the court to micro-manage issues that they should be able to sort out between themselves:

• At which junction of the M4 should a child be handed over for contact?
• Which parent should hold the children's passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction
• How should contact be arranged to take place on a Sunday afternoon?

His message to parties and lawyers is this: ‘Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation.’

As a mediator with nearly 30 years’ experience in helping clients to resolve similar issues, it astonishes me that so many such cases still end up in court rather than using alternative methods of dispute resolution. Mediation is often the best place for such clients to air their differences in a safe, neutral environment, using the mediator’s guidance and conflict resolution skills to reach a sensible agreement. In most private law children cases, clients have to attend a mediation information and assessment meeting (a MIAM) before they are permitted to file a court application. However, there is no requirement for them to actually mediate jointly with the other party, as the mediation process itself is entirely voluntary. Indeed, all too often we hear that clients have been told by their solicitors that the MIAM is just a ‘tick box exercise’ that clients have to go through in order to get to court; clients are not always genuinely encouraged by their legal advisors to give mediation a proper chance.

Mediators always strongly recommend that each client takes independent legal advice, particularly in finance and property cases. Long experience has shown that the best results from mediation are usually obtained when clients consult their solicitors at appropriate points. In this way, clients receive advice that informs their negotiations in mediation and ensures that the agreements they achieve will be supported by their solicitors at the end of the process and, where appropriate, can be embodied in consent orders by the court.

It is to be hoped that HH Judge Wildblood QC’s robust message will prompt solicitors to actively encourage clients to make a serious effort to use mediation. For those clients who cannot afford a solicitor and are acting in person, the court always has the power order them to attend a MIAM by making an Activity Direction pursuant to section 11A of the Children Act 1989, following which it is to be hoped that they will take the opportunity to use mediation jointly with the other party to solve their problems through constructive negotiation.