Tag Archives: children

Cases involving Children – Court, or not Court?


Three business people are meeting

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.



meeting room table with chairs around

This week is Alternative Dispute Resolution week.  This means that Family Solicitors up and down the country will be trying to promote alternative ways of resolving disputes, and trying to avoid court.

As a mediator, solicitor and collaborative lawyer, I have heard all the arguments for and against mediation, collaborative law, and round table meetings.  At the end of the day, I think that for best outcomes, both participants do need to want to try and resolve their dispute.  I often say that most disputes are suitable for mediation, but it may not be the right time for mediation.

It is difficult sometimes to sell mediation to a client.  This is because it is voluntary – their ex can not be made to attend, and can not be made to discuss problems if they do not want to.  In the recent case of Mann v Mann [2014] EWHC 537 Judge Mostyn was faced with a wife’s application to enforce an order to pay her money by the husband.  The husband argued that the wife had agreed to attend mediation first.  Judge Mostyn  confirmed that he could not force a party to go to mediation.  However, he adjourned the case to enable mediation to take place.

So, it’s clear that Judges think mediation is a good idea, and the Government thinks mediation is a good idea.  Why not clients?  There are some really good reasons to mediate – mediation can resolve disputes much more efficiently and more quickly than a court can, and it costs a fraction of the price.

I think that part of the problem is that when couples become locked in conflict, they stop communicating, and to start again is very difficult.  It suggests that somehow, they have let the other person off the hook, or they have forgiven them for behaviour that upset and hurt them.  Mediation means that clients have, to a large extent, got to trust each other, or trust the process.  That is a difficult thing to do.

For some, it may be too early to be able to look at the future – clients do need to be in a place emotionally where they can look forward, not look back.  Quite often in mediation, I find that couples work really hard to come to some sensible arrangements, and then get stuck on one seemingly small point.  This is because reaching a consensus effectively terminates the relationship, and people do find it hard to let go.

That said, please give consideration to mediation.  It means that both of you makes the decision, rather than leaving it to a judge.  It also enables you to be able to communicate more effectively in the future.  It takes less time, and it costs less money.  It is a giant leap of faith for some, but take the leap – it may work out!!

iphone work 010

Children and Families Act 2014 – A Play on Words?

iphone work 010


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!