Category Archives: Divorce

Mediate not Litigate

And that is the rallying cry of Mr Justice Holman in the case of Ekaterina and Richard Fields

The couple have been married about 10 years, have two children, and at the start of the case, the Judge has urged them to try and resolve their financial issues without the intervention of the court.  He explained that court hearings can be “awful” and described them as being like a boxing match.  The couple’s fees are expected to be in excess of £1 million by the end of the trial, and the Judge asked them to consider what else they could have spent the money on.

As a mediator and a solicitor, I am aware that some cases are suitable for mediation, and others are not.  For most however, it’s a question of timing.  At the start of the separation, feelings are very raw, with clients ranging from angry to distraught.  This is usually when clients are told about the benefits of mediation.  This is usually when most people are not ready to try and work with their ex – there is likely to have been a massive breach of trust, and by embarking on the mediation process, clients have to trust their ex to make the process work.

By the time the court system kicks in, many clients are weary of the process, are fed up of paying legal fees, when they don’t feel like they have got very far, and are more likely to be receptive of mediation and the benefits – it’s quicker and cheaper, and far less stressful, and clients can dictate the pace (provided they agree).

What is the answer?  Our system is built on the basis of litigation.  There have been various suggestions over the years, as to how to improve our divorce system – by introducing no fault divorces, and by having a “cooling off” period.  The difficulty is that our system is a one size fits all and as a practitioner of over 20 years, no two divorces are the same.

Mediation needs to be promoted, not as an alternative to litigation, but the main option.  It is only when mediation is at the forefront that people will be more accepting of the system.

Some clients think that having a judge make a decision is somehow easier than making a difficult decision for themselves.  It is only when they have been in litigation for a few months do they realise that that isn’t the case at all.

The Changing Tide


child with milk caught in the middle isolated on white


I have recently read a series of articles, which I think are all related to the Government’s legal aid cuts in family law.  The first was how the Government is announcing a £2 million support package for separating couples, the second was how there has been a decrease in cases concerning children as a result of separation or divorce by 25% in September, and the third was about the address made by Simon Hughes that more people are resolving disputes outside the Courts.

As a mediator, it is great to see that the Government are really encouraging mediation, and are really trying to promote the positive benefits of achieving an out of court settlement, in relation to children and/or finances.  As a mediator, there are few cases that are unsuitable for mediation, and this is why the Government feel that everyone should be using it.  The reality is that for some people, it is not the right time.  What the Government have failed to take into consideration is that the breakup of a relationship is really emotional.  People are quite often in different places emotionally, and this makes sitting in a room with the other person really hard.  Quite often, people feel angry or bitter, and this prevents them from being able to make rational and good decisions about their future, and their children’s future.  Sometimes both people feel angry or bitter towards the other, and are simply unable to make decisions together.  Quite often it can take a long time for parents or ex partners to get over a break up.  It is for these people that the Government’s policy regarding legal aid has had the biggest impact.

Mediation is great for some, but is not a panacea that cures all ills, and the Court system is still vital for some families.  It is no surprise that there has been a 25% reduction in September in respect of Children Act applications for a Child Arrangements Order (contact and residence as was).  As a solicitor, I see a lot of clients for the first time, and they are simply not in a position to pay for solicitors to represent them through proceedings.  A lot, I know, will walk away, without seeing their children.  This has a massively damaging impact on the children.

I am pleased that the Government is now using some of the money that it has saved with the legal aid cuts, on supporting separating couples.  I am really proud that in Huddersfield, the local firms all support the Legal Support Service, where a “duty” solicitor speaks to people who are acting without a solicitor and who have a case in Court at that time, to offer them some guidance on how to present their case and what to expect.  The Government are piloting that at certain court centres, with the aim of rolling it out across the country.  The work appears to be done by the Personal Support Unit, LawWorks and Law for Life.  However, whilst this may alleviate the burden on Judges, it still doesn’t go far enough in helping clients to make sensible decisions about their future.  I know that Resolution, the Family Law organisation, was trying to get the Government to fund solicitors offering one advice session, so that at least separating couples were getting some legal advice from the outset.

The other positive thing is that the Government is funding a CAFCASS-run Helpline, for parents wo have been unable to resolve disputes, and want to avoid court battles over their children.   However, it takes two to tango.  If one parent is not in a position to negotiate, or try and make arrangements, the Courts will still be needed to help to sort the situation out.

Sadly, I fear that due to the Government’s policy, and lack of understanding about separation, many children will go without seeing a parent, and many couples will find that they have madeunsuitable agreements about financial issues because they can not afford legal advice.



Golden scales of justice, gavel and books on brown background

As from 3rd November 2014, all divorces will go to a regional central hub.  In Huddersfield, the area that I practice in, the divorces will be issued out of Bradford.

It sounds like this could be really burdensome.  In reality though, if divorces become defended, or there are applications made for financial provision, the proceedings will then be transferred to the “home” court.

It is not clear why the move has been made – save that it could be to prevent fraudulent petitions being issued out of multiple courts, and it could be to do with the fact that over the last few years, many courts have been closed down.

Again, the proof of the pudding is in the eating – we’ll have to see how it goes!  It’s a good job most family lawyers are pretty adaptable!

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Children and Families Act 2014 – A Play on Words?

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The Children and Families Act 2014 was passed by parliament on 13th March 2014.  Most of this Act involves adoption, and Local Authorities responsibilities to children.  However, it has once again changed terminology in private children proceedings.

As a solicitor, I used to find it really frustrating that the words “access” and “custody” were still being used, despite the fact that the Children Act 1989 introduced the terms  “contact” and “residence” to replace them.  We are about to undergo another change.  This is that contact, residence, access and custody are being done away with, and are being replaced with Child Arrangement Orders.  The Court will have power to make Child Arrangement Orders when determining where a child should live, and who they should spend quality time with.

But is it all just a play on words?  I remember meeting with a very experienced family mediator, and she said that she was going to replace the words “access” and “contact” with “quality time”.  Initially I thought that this was just another play on words, but then I realised that she was subconsciously trying to get across to parents in dispute that this time was something good, not something to be feared, resented or hated.  It was for the parent to have some good time with the child/children.  I do applaud this suggestion.

However “Child Arrangement Order” does sound very clinical to me.  It reminds me of making an appointment for my children to see the dentist, or having to go to the Doctors.  It doesn’t sound like two parents co-operating to help their child have a future with certainty.  In addition, if it’s been over 25 years since the Children Act came into force, and the terminology from previous law is still around, how long is it going to take before we start talking about Child Arrangement orders?  It doesn’t exactly slip off the tongue!

The one really big change for family law is that there is now a presumption that involvement of a parent in a child’s life will further their interests, unless the contrary is shown.  In my experience this is very much the starting point of a court in any event, so it will be interesting to see how much difference this actually makes in practice – watch this space!