Family Law London Blog

The Chair of Resolution, Liz Edwards, has spoken at the fourth European Collaborative Conference in Edinburgh.

Collaborative law is a dispute resolution mechanism that allows both partners to be represented by lawyers, while meeting to receive advice and discuss solutions in the interests of the family. The process involves two clients and their lawyers attending a series of face to face meetings. Other professionals are brought into negotiations where needed.

The process can be very effective, as it allows separating couples to talk through their difficulties with the support of their lawyers, but having agreed that they will not instruct the lawyers to go to court. It can allow disputes to be resolved outside of the court room, even when mediation is not suitable.

During her speech, Liz Edwards talked the effectiveness of this method of dispute resolution and highlighted it as one of the options available for separating couples wanting to resolve their issues outside of the courtroom.

She explained that Resolution is also exploring the use of other dispute resolution methods and techniques for family disputes, including early neutral evaluation; other mediation techniques such as directive mediation; and family arbitration.

The Government has announced its intention to introduce legislation to speed up the family justice system and reduce delays in the adoption system.

The planned Children and Families Bill would also strengthen the powers of the Children’s Commissioner – to champion children’s rights and hold government to account for legislation and policy.

The key measures affecting the family justice system under the Bill include:

• Creating a time limit of six months by which care cases must be completed.
• Making it explicit that case management decisions should be made only after impacts on the child, their needs and timetable have been considered.
• Focussing the court on those issues which are essential to deciding whether to make a care order.
• Getting rid of unnecessary processes in family proceedings by removing the requirement for interim care and supervision orders to be renewed every month by the judge and instead allowing the judge to set the length and renewal requirements of interim orders for a period which he or she considers appropriate, up to the expected time limit.
• Requiring courts to have regard to the impact of delay on the child when commissioning expert evidence and whether the court can obtain information from parties already involved.
• Requiring parents in dispute to consider mediation as a means of settling that dispute rather than litigation by making attendance at a Mediation Information and Assessment Meeting a statutory prerequisite to starting court proceedings.
• Freeing up judicial time by allowing legal advisers to process uncontested divorce applications.

Speaking at the 24th Resolution annual conference in Leeds, the President of the Family Division, Sir Nicholas Wall gave a strong backing to Resolution’s position that there should be legal provision for no fault divorce.

In a speech to over 300 delegates, Sir Nicholas said: “My position is very simple. I am a strong believer in marriage. But I see no good arguments against no fault divorce.”

He went on to say, “In the nineteenth century and for much of the twentieth, divorce was a matter of social status – it mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the “innocent” party. All that, I think, has gone.”

He also expressed concern that Mediation and Information Assessment Meetings are not working, observing that the government had introduced the process without making them compulsory, as this was felt inconsistent with the voluntary nature of mediation. He acknowledged that in some areas, judges are not following rules requiring them to encourage attendance at mediation. In concluding, he told practitioners that their aim “must be to encourage the court to make proper use of these powers".

The Bar Council and Family Law Bar Association (FLBA) have urged the Government to take a considered and practical approach to reforming family law and not to rush to legislate, as it published its response to the Family Justice Review.

Commenting on particular areas of the Government’s response, Nicholas Cusworth QC, Chairman of the FLBA, said:

“There are parts of the Government’s response, which we welcome, such as strengthening the Court’s enforcement rules, for which we have called for some time. Current rules are piecemeal and ineffective, and a cohesive approach to revising them would be a positive step.

“However, there are a number of elements of the Government’s response where question marks remain. On shared parenthood, we agree with the Family Justice Review’s finding that, learning lessons from the Australian experience, legislating on this issue risks creating the perception that there is a right to substantially shared or equal time, for both parents. It is already widely understood and applied by the courts that children benefit from having a relationship with both parents and legislation would be unnecessary and may do more harm than good. The Government must consider this with the greatest of care.

“The Government continues to place great emphasis on mediation. Mediation in private law cases is supported and encouraged, but there will always remain a significant minority of cases that do have to go to court. The extent to which the size of that minority diminishes after the introduction of compulsory mediation is not yet clear. Particularly given the likely increase in the numbers of litigants in person anticipated when the LASPO Bill becomes law, there may be very little reduction (if any) in the numbers of private law cases requiring court intervention.”

The government has announced major reforms to the family justice system which it says will tackle delays, streamline processes and rebuild trust.

According to ministers, the changes in education and the introduction of parenting agreements which the review recommended will help ensure better recognition of the joint role of parents within wider society.

The government has also accepted the need to clarify and restore public confidence that the courts recognise the joint nature of parenting. It therefore intends to make a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child's best interests.

The government is mindful of the lessons which must be learnt from the Australian experience of legislating in this area, which were highlighted by the Review and led them to urge caution. It will therefore consider very carefully how legislation can be framed to ensure that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child.

The government has also announced that it will simplify the family justice system to help separating couples reach lasting agreement speedily, if possible without going to court. It will make it mandatory for separating parents who propose court action to resolve a dispute about their child to have an initial assessment to see if mediation is something which would be suitable instead, to help them agree on the arrangements for their child.

It will drive culture change and better cross-system working through the establishment of a new family justice board, accountable to ministers, made up of senior figures representing the key organisations who play a role within the system and who will have a clear remit to improve performance.

Justice Secretary Kenneth Clarke said:

'The reform of family justice and child protection is a critical priority for government. Our reforms are ambitious and system-wide and particularly tackle the crucial problem of delay.

'More use of mediation, more effective court processes and more efficient provision of advice will help to create a family justice system which can better resolve these difficult emotional problems in the best interests of children and families.'

Justice Secretary Ken Clarke has urged separating couples to consider mediation when they separate or divorce, instead of turning to the courts.

Mediation can be a quicker, cheaper and more amicable alternative to court, where couples work through their issues in the presence of a qualified mediator to make arrangements both sides can agree with, rather than putting lawyers and a judge in charge of deciding a couple's future arrangements.

Rules introduced last year mean that separating couples now must complete a mandatory assessment to determine if mediation is a better option for them. The Government has already increased spending on mediation by two thirds, or £10 million, to £25 million each year, to allow separating couples to mediate.

Encouraging separating couples to consider mediation is one of a package of reforms introduced by the Government to encourage people and businesses to take responsibility for their own disputes, rather than turning to the courts. This includes:

• A first major overhaul of the civil justice system in 15 years, which will tackle fears that a damaging compensation culture and an unwieldy justice system is costing businesses millions of pounds and deterring deserving individuals from using the justice system. Under the proposals more people will be encouraged to use mediation instead of going to a court hearing.
• Government leading by example by signing a new Dispute Resolution Commitment which means all departments and agencies must consider using alternatives like mediation, arbitration and conciliation first before taking disputes to court. This will build on savings of more than £360m made in the last decade.
• Reforming the legal aid system, which is one of the most expensive in the world, so that courts are seen as a place of last resort, not a first choice, and more cases are resolved earlier with different approaches aimed at simpler dispute resolution.

Justice Minister Jonathan Djanogly has spoken out in praise of family mediators for giving separating families the opportunity to resolve their differences without resorting to court.

Grant Thornton's eighth annual matrimonial survey of family lawyers has sought views on the impact of the requirement for separating couples to attend compulsory mediation.