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Keeping family disputes away from the courts – is there light at the end of the tunnel?

Date:17 NOV 2021
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Chief Executive, NFM

Earlier this month industry experts gathered at the Jersey International Family Law Conference 2021 to hear from a range of key spokespeople, decision makers and opinion formers on a whole host of hot topics.

Perhaps most notably, certainly for my colleagues and I at National Family Mediation, was the address by Sir Andrew McFarlane – the residing President of the Family Division – who took the opportunity to outline some of his priorities and what it was he wants to achieve before he (in his words!) hangs up his ‘wig and flashy robes’ in three years’ time.

Of course, he gave the Digital Reform Programme for Civil, Family and Tribunals the necessary airtime, as well as the importance of securing equal standing for the Family Court to sit alongside the Criminal and Civil Courts.

The emphasis, however, was firmly placed on supporting families in conflict, and the resolution of Private Law disputes between parents in the context of care arrangements for children in the case of a separation or divorce.

Hear hear, I say!

None of this is new rhetoric, with a previous keynote speech given by Lord McFarlane at the Resolution Annual Conference in 2019 already stressing that cases of straight forward relationship ‘disfunction’ should not need to go before a magistrate or judge for resolution.

But it was reassuring, regardless, to know that there was still a real desire to embrace alternatives to court when it comes to assisting couples who need help and support to co-parent effectively. 
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That call for a fundamental change to the way people think about, and approach, conflict resolution is exactly what is needed. After all, Lord McFarlane summed up perfectly what we all know; the Family Court is ‘not currently in a good place’.

The backlog that existed pre-global pandemic continues to grow, and the volume of applications being made to the courts increases month on month.

Indeed, NFM is in the process of doing all we can to promote the current extension of the voucher scheme in an attempt to ensure feuding families resolve any conflict over Christmas plans. Not only because that is likely to bring about the most amicable solution possible, but also because the courts simply do not have capacity.

Thankfully the message seems to be reaching the right people, as we have seen an influx in new voucher funded enquiries in recent weeks.

A further extension of that scheme would of course be another massive step in the right direction in ensuring Lord McFarlane achieves his ambitions, but we are also delighted to hear of the progress being made on the launch of the pilots of Family Hubs – part of the government ‘Growing Up Well’ project - in both North Wales and in Dorset.

Intended to improve access to services, the connections between families, professionals and services providers, these hubs are ultimately dedicated to putting relationships at the heart of family help.

As a national mediation provider, and the sole provider of the Separated Parents Information Programme (SPIP) in Dorset, we are look forward to working with those behind the trial in order to provide mediation to families in conflict both locally, and when it is rolled out across the country in due course.

While these two initiatives do demonstrate a positive potential shift in attitude, it would be naïve to assume the battle will not be an uphill one.

Almost 40 years of evidence of successful outcomes achieved in mediation remains largely ignored – including the fact (yes fact!) that parents who engage reach agreements that are quicker, cheaper and certainly more durable than other interventions following divorce or separation.

There is also endless evidence to back up the fact that placing relationships and wellbeing at the heart of conflict resolution will also remove some of the burden that family breakdown puts on wider public services including the NHS, social services and education.

This is backed by data from the ONS (2018) Annual Population Survey (APS) which reports that divorced or separated parents is amongst the group at highest risk of lowest wellbeing. Inevitably this will have an impact on the children of today who are the parents of tomorrow.

Despite this, the public policy discourse on good relationships and the role they play in improving the future wellbeing of children is currently well behind the curve. The government continues to segregate health, mental health, education, achievement without seeing the whole picture – which is that it inevitably affects a child and their future.

There needs to be a fundamental shift in the way people perceive and engage with mediation. We need to focus on educating people as to the benefits – both in the here and now, but also in the longer term, including alleviating the pressure on the courts, reducing the level of animosity associated with family breakdowns, as well as the reducing the personal costs associated with ‘having your day in court’.

While both schemes, the vouchers and the Family Hubs, are not a silver bullet, if embraced as they should be by both users and professionals, they will, we hope, help.