The Family Court system is changing for the better, with one of the major catalysts being the long-awaited no-fault divorce legislation which came into law on April 6, 2022.
The new rules immediately remove one of the biggest causes of conflict in the divorce process (having to decide who is to “blame” for the marriage breakdown) and also provide additional funding for separating couples to go through mediation – one of the best ways to resolve disputes in relation to children, as well as property and finance.
It’s this dispute resolution that the courts wish to keep out of the courtroom. The problem when it comes to deciding who gets what, and who lives with whom, is that emotions are often running high when it comes to the separation. This makes communication difficult, and coming to reasoned, practical compromise even more so, and this contention and acrimony are why so many people have previously gone to the courts to make a decision for them – because they can’t reach an agreement.
The courts made moves to address this problem in 2014, making it a legal requirement to attend a MIAM (Mediation Information and Assessment Meeting) before writing to the court. This enabled thousands of couples to reach agreements together, independent of the family justice system, and freeing up the court’s time for more complex and problematic cases.
No-fault divorce, and its accompanying changes to divorce laws, are the next step in further reducing acrimony and conflict, reducing the burden on an already overstretched court system – a problem which was only exacerbated by the pandemic.
Part of the courts’ commitment to people resolving their differences outside of court has been a round of additional funding for mediation for children disputes. The additional £5.38m will bring the total invested in the scheme to £8.68m since March 2021. The mediation voucher scheme will contribute up to £500 to parents to help cover the costs of mediation when it comes to childcare arrangements.
When they came into force at the beginning of April, the new legislation led to a sharp rise in the number of divorce enquiries with 3000 in the week immediately following, up from an average of 2,000 per week beforehand. This clearly demonstrates that there are couples who are more than willing to separate neutrally, if not amicably, and so reduce the bitterness and anger that comes with apportioning blame. There is a renewed emphasis on dealing with the practicalities of divorce in a constructive, rather than conflagratory fashion, and keep it away from the more stressful and expensive court system.
The system, of course, will not be perfect for everyone. There will always be couples and cases who require the assistance of the courts, but for many others it will be much easier, considerably cheaper, and a lot less stressful to settle outside of a struggling court system.
A Cafcass study shows that there were 97,496 children in private child court proceedings in 2020/21, over 20% higher than in 2016/17. In public law that number totalled 146,129 for 2020/21, an increase of 16.4%. With the average length of a case lasting 45 weeks, those numbers are unsustainable. Shifting the focus to constructive resolution outside the court system is better both for the courts and the families themselves.
The Family Mediation Council (FMC) conducted a survey that found mediation was successful in more than 70% of cases. That’s more than 70% of cases that didn’t need to go through the court system, and increased availability and mediation vouchers will help provide both financial and emotional support for even more families who might otherwise be unable to afford mediation.
Further FMC research also found that three-quarters of families chose to pursue mediation as their best option after an initial meeting. The council noted: “This is despite the fact that many don’t know anything about mediation or think that their partner is so unreasonable that mediation will never work”.
For parents, mediation gives them more control over their future and that of their children. When a case goes to court, a parent no longer has a say in the matter leading to further stress. The judge sees the case from an outside, objective perspective. They cannot know the personalities and people involved and must simply look at cold facts which while it may end in a fair result it might not be a happy one. Mediation allows parents to keep that control.
The day-to-day issues like bedtime, the school run, and talking to a child about the new living arrangements simply cannot be considered by the judge, but in mediation everything is up for discussion, negotiation, and agreement. Working together toward a mutually acceptable resolution is the best way for parents to be able to move on without contributing further to any bitterness or ill-feeling.
Parents want what’s best for their children, and while the relationship with their partner may be over, the relationship with their children as a parent or caregiver is not. Mediation allows separating parents to discuss the issues in a more relaxed, more constructive environment. Communication is encouraged and as such both can reach agreements that suit everyone involved.
A child’s best interests are always at the heart of a court’s decision, but that doesn’t necessarily take into account the details of family relationships, the personalities involved, and individuals’ particular needs. It’s this consideration that family mediation provides.
A judge explained the court’s perspective: I cannot order people to be nice. However, in mediation, parents can discuss matters and hopefully improve their communication so that they have the tools to resolve disputes, thus avoiding court now and in the future.”
The family mediation scheme will give more families access to mediation services, and so allow family mediators to fill in the gaps left by the courts’ time and resource constraints.
While 70% of cases report success in using family mediation rather than the courts, it’s important to note that there are cases where mediation is not the most appropriate course of action. For example, in cases where there may be allegations of domestic abuse, concerns for the safety of the child(ren) or parental alienation, the court must be involved to ensure correct decisions are made. This is dependent on an efficient family justice system that is accessible to those who need it for the most effective solution. Resolving issues through mediation rather than the courts means that the courts can focus more on these cases where their attention is more keenly needed.
Some have argued that directing people away from the courts to mediation and other dispute resolution services is designed to remove access to the justice system. Government funding through schemes such as mediation vouchers is no such thing. The funding is there to help families access a proven method of helping them find solutions to their problems. As the statistics have shown, courts aren’t required in the majority of cases – only the ability to work through issues until families can reach their own decisions rather than having one put upon them.
Mediation legislation was the first step to reducing conflict during divorce and separation, and the new divorce laws, particularly regarding no-fault divorce, should reduce that further with the option of having “someone to blame” for the relationship breakdown. In time, hopefully, this will lead to greater court facilities and time for those who need it, and greater efficiency and effectiveness of the family justice system.
