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Kara Swift
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Mediation and the judge’s letter to ‘Sam’: judges need to ‘use their imaginations’

Date:26 OCT 2017
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Solicitor Advocate
In a recent article Jane Robey makes a serious point about judicial referral of parties to mediation; but she does so by criticising the judgment of Peter Jackson J (now Peter Jackson LJ) and his letter to ‘Sam’. There are lots of things wrong with the family justice system; and take up of mediation is disappointing. To use Peter Jackson J’s direct communication with the subject of the application in his court, as a means of promoting referral to mediation is surely to pick the wrong target?
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In Re A (Letter to a Young Person) [2017] EWFC 48 Peter Jackson J decided to explain his decision to the ‘young person’ involved in the case by writing the majority of his judgment as a letter to ‘Sam’. In her article Robey describes the ‘verdict’ (as she terms it) as providing ‘a novel approach’, but says ‘it’s time for judges to use their imaginations in a completely different way’. Using judicial ‘imaginations’ is linked in the article to the importance of people involved in family breakdown going to mediation.

No family judge gets any pleasure from sitting through many of the family breakdown cases which they hear. They do it because other attempts have failed. Their job is to impose a solution. Medicine is the same. Doctors do not want people to be in pain or to be sick; but because they are, doctors remain in work. I have been involved in mediation from the outside (ie I am not a mediator) since I helped set up this country’s first ‘conciliation service’ in Bristol in 1975. From the start judges (Family Division judges; circuit judges and district judges and magistrates’ clerks: we held our first steering committee in the Bristol Magistrates’ Court) were actively involved in developing the idea.

Mediation: a need for publicity

Information and publicity for mediation is, surely, the real problem? Many people involved in family breakdown – couples and their children, alike – do not know about mediation. Most judges encourage it, and have done for many years; but awareness is need long before the family breakdown gets to the judge. If others who are in contact with a couple whose relationship is coming apart – friends, children’s teachers, health professionals etc – do not know about mediation, then they will not know to pass on the important information about mediators.

I say it’s high time for the judiciary to become more creative and vocal in its efforts to avoid court battles that expose the dirty laundry of a separating family, often in the full glare of the people most affected: the children.

Peter Jackson J: a letter to ‘Sam’

Some people – even with the most skilled mediator – cannot reach agreement. And if people cannot agree, that is what judges are for; just as if people do not get well, that is what doctors are for. Very few people want to be ill. Very few want go to court. Reading between the lines of Peter Jackson J’s ‘letter’, I cannot help wondering how susceptible to mediation Sam’s father might have been (I do not know whether mediation was attempted; and I do not know what was said to him about mediation).

Sam was a 14-year-old who had applied to court himself, so that he might travel with his father to live in an unnamed Scandinavian country. His mother opposed the plan. The judge in his letter to Sam described the issues for him to decide as:

'The decisions that I have to take are these: (1) should you go and live in Scandinavia? (2) should you become a citizen there? (3) if all your parents [he had a step-father as well] are living in England, should you spend more time with your dad? (4) if your dad goes to Scandinavia, and you stay here, how often should you see him?'

He did not agree with Sam’s application (taken over for him by his father). Of the father, the judge said in his letter to Sam (as one of the ‘factors he had to take into account’):

'… He is a man with some great qualities. When he is relaxed, he has charm and intelligence. But underneath that, I see someone who is troubled, not happy. He has not achieved his goals in life – apart of course from having you. Because of his personality style, and the love you feel for him, he has a lot of influence over you. All fathers influence their sons, but your father goes a lot further than that. I'm quite clear that  if he was happy with the present arrangements, you probably would be too. Because he isn't, you aren't.'

Mediation and a paternal influence

I wonder how a mediator would have dealt with the level of paternal influence over Sam? The judge concluded:

'Sam, the evidence shows that you are doing well in life at the moment. You have your school, your friends, your music, and two homes. You've lived in England all your life. All your friends and most of your family are here. I have to consider the effect of any change in the arrangements and any harm that might come from it. In any case where parents don't agree about a move overseas, the parent wanting to move has at least to show that they have a realistic plan. That plan can then be compared with other plans to see which is best. That has not been possible here. You will remember that at the earlier hearing in May, I made very clear to your father that if he was going to seriously put forward a move to Scandinavia, he had to give the court proper information about where you would be living and going to school, where the money would be coming from, and what the arrangements would be for you to keep in touch with family and friends in England. At this hearing, no information at all has been given. Your father described the move to Scandinavia as an adventure and said that once the court had given the green light, he would arrange everything. That is not good enough…'

A constructive way forward – rather than criticising a real attempt by a judge to communicate with a child who was the subject of the case before him – would be to accept that the judge was involved. At that stage (we do not know what mediation had been tried in Sam’s case) the judge had to make a decision. He did so; and he involved the boy (one of the main actors in the case) in his decision-making and its outcome. Surely he is to be congratulated for such a real effort to engage ‘Sam’; and writing for an audience which is not your usual audience can be truly an effort. Other judges, who must communicate with a mature child (who is still a child), surely could do the same (even if it means writing a letter to the young person, parallel with any judgment).

The question of promoting referral to mediation is a completely separate – and pressing –issue; and I am sure it is one as near to the heart of this, as to any, family judge.