I have just read an interesting article by a Social Worker called Gar Direnfeld from Ontario Canada, and I was struck by the similarities between the English Judicial system and the Canadian one.
It made me think about what people need to know before they embark on Court proceedings, which are sometimes seen as a panacea to cure all ills. So here are my top observations that will help enable people to decide whether court proceedings are the right forum for their dispute:-
1. The Court is not there to apportion blame – they will not adjudicate one person right and one person wrong. Whilst they may not condone behaviour they will not mete out punishment.
2. The Court is not there to be on anyone’s side, other than the child, or children that they are being asked to make decisions about.
3. The Court will make a determination, and it is, in most private law disputes, likely to be somewhere in the middle of the representations by the two sides. This means that neither of you will be particularly happy about the outcome.
4. If there is a section 7 report, prepared by CAFCASS, or Social Services, the Court is likely to follow it. If they do not, they have to have very good reasons to depart from it.
5. If one side is perceived to have “won”, the other “lost”, the arrangements that the Court have imposed are less likely to be adhered to, and often can make the situation worse.
What alternatives to Court are available
1. Mediation – where both of you discuss the arrangements with a neutral third party, and try and come to a mutual decision.
2. Collaborative process – where both of you instruct lawyers who are collaboratively trained and you all meet together to try and come to a mutual decision
3. Lawyer led negotiations – where you meet with your solicitor, and discuss proposals, which are then put in writing, or discussed at a meeting that all of you attend.
Sometimes these options are not possible – where the welfare of children are at risk, or where one side refuses to engage in the process at all. But where these options are available, whilst the decisions you reach will often be difficult – compromise is key – they are likely to have longevity as the decisions have been made by both of you, and not imposed by a Court.