Judge reminds parents and their lawyers to choose court to resolve the arrangements for children only if no other option is appropriate…

When you first separate from your child’s other parent, things may feel futile. It may be that you’ve argued intensively over a period of time, or that you’ve lived in parallel and grown apart, or of course many shades between. As a result, the very thought of being able reach amicable arrangements for your children’s future may seem inconceivable.

In England and Wales, the family court is keen to remind us that, unless absolutely necessary - for example because a parent or child is at risk - the court isn’t necessarily the best means of resolving disputes about children. In fact, the research shows that court proceedings can potentially worsen the level of conflict and communication breakdown between parents, leading to poorer outcomes for children in the immediate and longer-term. Last week, a well-known judge of the family court, Stephen Wildblood QC, released a judgment in which he said:

The message in this judgment to parties and lawyers is … do not bring your private law litigation to the family court 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 on you. There are many other ways to settle disagreements, such as mediation.”

So what other options are available for parents who need to resolve disputes about their children’s living arrangements following separation?

Most people have heard of and are familiar with mediation. In mediation, you both attend of your own choosing, set an agenda and work together to make arrangements that suit your family. Your mediator is a professional who supports your discussions and remains impartial. Research has shown that those who attend only a few sessions of mediation consistently rate one another as better parents even a decade after attending the mediation, as compared to those who went through the court process.

Some parents now consider appointing an arbitrator. An arbitrator has a similar role to a judge in that you invite him or her to resolve a list of pre-agreed issues for you, for example, how your children will divide their time between you. The arbitrator’s decision is binding on your both. Arbitration is helpful for some families because you can dictate the specific issues you want the arbitrator to address and the process can be much quicker than standard court proceedings.

Sometimes, parents can agree to arrangements for children with the support of solicitors who will speak to one another on behalf of their parent client until an overall agreement has been settled. Alternatively, the collaborative process is an option, in which both parents sign up to a series of joint meetings with their participating lawyers and commit together to reaching agreements that suit the family’s needs in two households – see more here. Finally, parents might consider parenting coordination, which is another form of DR described in a recent earlier blog – see here.

Which types of issues can be resolved away from the court?

Unless you are completely polarised in your views, or there is a risk to one parent or the children, you should consider all other means of addressing and resolving disputes before you decide upon a court application. You should expect a good legal adviser to explain and weigh all the options with you.

Solicitors advising parents should have an eye to whether the issues in dispute are really in the nature of what the court describes as ‘parenting issues’, rather than legal ones. For example, in the same court judgment, Stephen Wildblood QC reminded parents and family solicitors that the following types of issues were likely to be parenting in nature, rather than legal.

  • At which junction of the M4 should a child be handed over for contact?

  • Which parent should hold the passports, even though there was no alleged risk of them being withheld or the children being taken out of the country; and

  • How contact arrangements should take place for a Sunday afternoon?

At Mills & Reeve LLP, we bear the above points in mind, and hope that our parent clients will be able to consider all options available to them and reach a fully informed and considered decision about how to proceed. If you would like to discuss this blog, please contact Claire Molyneux.

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