29 April 2010

Following a pilot in Courts in the West Midlands and elsewhere, the Revised Private Law Programme became effective from 1 April 2010. Writing about the Programme in the March 2010 edition of Family Law, His Honour Judge Altman spoke of the Courts now being able to provide a forum for collaborative work between government and non-governmental agencies and parents rather than being merely a tribunal to resolve disputes.

The ethos of the Programme is the promotion, in particular, of in-court family mediation as an alternative to contested hearings. All well and good. Any measure which shifts the Family Courts away from being the first resort for warring parents is to be welcomed. But the effectiveness of the Programme is entirely dependant on the availability of adequate resourcing to facilitate the inclusion of all relevant agencies.   The Family Justice System is already hugely under-resourced. Providing additional resources for mediators along with Cafcass officers and Judges to attend an increased number of conciliation appointments will surely mean cuts have to be made elsewhere.

Given there is no more fat to cut, a more fundamental approach is required. All the more so in view of research from the Lisa Birth Cohort Study in 2008 (amongst others) that demonstrates parental divorce or separation is more harmful to children, in terms of the stress they experience, than the death of a family member. Obviously that stress is exacerbated when children's parents litigate over their care arrangements.

Whilst there will always be a rump of hard cases that absolutely require judicial intervention, the vast majority of separating parents do not need to engage the Courts to resolve their differences. What is needed is a nationwide, non-legal, network that can provide information and guidance to separating parents or refer them on to accredited non-legal dispute resolution or therapeutic practitioners to enable successful co-parenting. 

There is some hope. In January the Ministry of Justice announced that it would undertake a review of the Family Justice system. However, a genuinely comprehensive review will need to explore whether the children of separating parents would be better served by finessing the Court process but otherwise going ahead with business as usual or by re-educating parents and lawyers so that Court really is the last and not the first resort.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

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