A better way to resolve children disputes

A better way to resolve children disputes

Last week the President of the Family Division Sir Andrew McFarlane, the country’s top family judge, gave an address to the Jersey International Family Law Conference 2021. In it he outlined what he called a better way to resolve disputes between parents over arrangements for their children.

What he said should be of interest to all separated parents, but before we look at how things might improve, we need to briefly look at why there is a need for improvement.

The problem of parental conflict

Child arrangements cases obviously go to court because the parents are in conflict as to how to resolve the dispute.

The problem is that court proceedings often only exacerbate the conflict. As the President said in an earlier speech in 2019: “The court, with its clunky legalistic approach will undoubtedly, in the end, produce a result which may then have to be imposed upon the parents, but, I would suggest … the court process is not one that either adds value to the welfare of the child or is in any way beneficial for the parents. In some cases, it may simply provide a pitch and a referee for them to play out further rounds in their adult contest.”

He continued: “To my mind, there has got to be a better way of assisting those couples who need some help and support at what is plainly a difficult time for them and for their children.”

So how do you build a system that supports parents, rather than exacerbates their conflict?

Two pathways

In 2018 the President set up a working group to review the approach taken to to resolve children disputes between parents with respect to the arrangements for their children following a separation. A subgroup was subsequently set up, called the ‘Family Solutions Group’ (‘FSG’), comprising some 20 members drawn from the fields of mediation, family therapy, social work, academia, direct provision of services to parents, the Civil Service, judiciary and the Law.

Last year the FSG published a report, in which it proposed two separate pathways when a case goes to court.

Sadly, allegations of domestic abuse are often a factor in children disputes. Obviously, the court must take any such allegations seriously. This means not just investigating the allegations but also protecting any victims, especially children.

Accordingly, the FSG proposed there be a special pathway for abuse cases, known as ‘the safety pathway’. All other cases would be assigned to the other pathway, which would be known as ‘the co-operative parenting pathway’, which would have a long-term goal of achieving co-operative parenting and shared responsibility.

And the FSG also recommended that even before the case gets to court it should be assessed by a family professional so that if there were abuse issues it would be pointed towards the court and if not, it would be directed towards non-court resources, offering a combination of legal information, counselling and mediation.

What are we doing now?

As the President said, the FSG’s report looks to the future, but steps are being taken now to realise their vision.

In particular, two pilots are being set up to trial a new model of court working. The pilots are to start up early next year in North Wales and in Dorset.

The pilots aim to develop a new more investigative approach, including developing ways to promote all forms of non-court dispute resolution including mediation; a less adversarial approach at court hearings; and testing differentiated pathways, or ‘tracks’, according to the type, complexity (including in particular domestic abuse issues) and urgency of the case, with returning cases being allocated to a special track.

Alongside these steps within, or immediately around, the court process itself, the pilot areas will develop the concept of a ‘Family Hub’ which will operate separately from the court, and to which families will be directed as the first port of call, rather than issuing a court application.

The aim of the Family Hub is to draw together, and be a co-ordinating focus for, the circle of local providers, for example agencies providing support for victims of domestic abuse or sexual abuse, and help with other issues such as mental health, substance misuse, housing, immigration, adoption and fostering, education, children and young and people, and health.

Following an initial assessment, the family may be referred to one or more of the available local support services, or to mediation, or to a parenting programme or, where it is appropriate to CAFCASS or, finally, in a clear case, to the court.

Four goals

The President concluded his address by saying that these measures are aimed at addressing four goals: improving the identification of and response to domestic abuse; paving the way to reform so families experience a smoother more efficient process which delivers them more quickly to focused help, and, where appropriate, does not bring them to the door of the court; increasing the court’s ability to engage with and conclude a case; and reducing the current backlog of cases going through the courts.