05 Oct Keeping children disputes out of court
When parents separate they obviously have to sort out arrangements for their children, in particular, how much time the children should spend with each parent.
And obviously if they are unable to agree arrangements they can apply to the Family Court for a child arrangements order, whereby the court decides with whom the children should live, and what time they should spend with each parent.
But too many parents are going to court to sort out these matters, rather than sorting them out by some other means. As we shall see, court should be the last resort, not the first port of call.
Busy courts mean cases take longer
Too many parents going to court inevitably means that court cases are taking longer.
And the latest Family Court statistics from the Ministry of Justice show just how bad the situation has become.
The statistics, for the quarter January to March 2022, indicate that in that quarter it took on average 46 weeks for child arrangements cases to reach a final order, i.e. case closure. This is up 7 weeks from the same period in 2021, and the highest value since the present records began in 2011.
So nearly a year for the case to be dealt with. On average. And this despite the law specifically stating that the court shall have regard to the general principle that any delay in determining such a case is likely to prejudice the welfare of the child.
And it is not just the children who are adversely affected. The delay will also add greatly to the stress suffered by both parents, while they wait for their case to be resolved.
The figures are a clear warning to parents of the perils of rushing off to court to resolve children disputes.
But keeping out of court is not just about avoiding delay in having the dispute resolved.
Court proceedings are stressful for many parents in any event, often adding to the animosity between the parents.
And the decision imposed upon the parents by the court may not be what either parent wants. It is far better to agree how the dispute should be resolved, than have a resolution imposed upon you.
Other ways to sort out children disputes
In a rare recent public intervention the President of the Family Division Sir Andrew McFarlane has said that he estimated that about 20% of the families who go to court to have a dispute about their children resolved would be better served by first of all trying to sort it out themselves in other ways.
Speaking to BBC Radio 4’s Broadcasting House programme, Sir Andrew said that for many couples court is the first port of call, when it should be the last resort, at least where there aren’t issues of domestic abuse or child safeguarding.
He also said that research shows consistently that if you’re the child of parents who are at odds with each other that is unhealthy, and to have a dispute that runs on in the courts is highly likely to harm the child. Parents who say they are not involving the children, or that the children don’t know, are fooling themselves.
Sir Andrew explained that the family courts are already piloting new ways of working to emphasise to parents the effect of contested court proceedings on their children. Part of that is that early on a social worker will file with the court a ‘child impact assessment’, with the idea of providing a wake-up call to the parents as to the impact of what they are doing on their children.
So it is essential that wherever possible parents should keep disputes over arrangements for their children out of court.
But what are the other ways to sort out children disputes?
Well, there are several options, but the most common are negotiation through solicitors and mediation.
A good solicitor will firstly better manage the client’s expectations, explaining what the court will and won’t do, thereby stopping parents from making hopeless applications, or pursuing unrealistic outcomes.
The solicitor will then help the client to negotiate with the other party, or their solicitor, and agree the matter without going to court.
The solicitor may also advise the client about mediation as a means of resolving the dispute. Under mediation the parties agree to refer the case to a trained mediator who will meet with them and help them to try to agree matters.
Note that the mediator will not be able to advise the parties, but they will be able to seek the advice of their solicitor throughout the mediation process.
If you would like to know more about how to resolve your children dispute out of court, contact us to make an appointment.