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Sandra Davis' Week: Government needs to further encourage ADR in family justice system

Date:21 MAY 2010

Government needs to further encourage ADR in family justice system

Sandra DavisLast week I wrote about the financial constraints which are impeding the operation of the family justice system to the detriment of children and parents.

This week, Solicitors Journal reported that the President, Sir Nicholas Wall, has given instructions for the publication of a judgment delivered by Thorpe LJ last year. The case, C (Children) [2009] EWCA Civ 994, is unremarkable and contains no novel point of law.  Sir Nicholas was, however, clearly taken by, and no doubt supports, the following observation made by Thorpe LJ:

"It is well known that the family justice system, both in the public law and in the private law dimensions, is stretched to breaking point. Judges have an obligation to safeguard and to husband the judicial resources of the court. It is also well known that the cost to the taxpayer of funding in the family justice field is worryingly high and that the government is determined to contain it. The direction of an unnecessary hearing is wasteful both of judicial resources and of public funding in publicly-funded cases."

No one who practices in the family division would disagree. The Legal Services Commission spends over £150 million each year funding contact and residence disputes. Add to that the administrative costs incurred by the Courts Service in adjudicating on these disputes and the cost to Cafcass of providing court reporters and the figure more or less doubles.

As funding increasingly becomes an issue, the issue of whether the court is really the best environment for parents to resolve post separation co-parenting issues is brought into sharp focus. 

In the vast majority of cases, childcare arrangements become contentious because parents have no forum within which to identify and resolve post separation issues.  If such a forum existed, research demonstrates that there is a far greater chance that parents can find solutions enabling effective co-parenting which meets the needs of children and their parents. 

Whilst there will always be a rump of cases that require judicial intervention, the reality is that our adversarial system polarises parents and, in many cases, adds to rather than diminishes the animosity between separating couples. The imposition of child care arrangements by a court simply resolves the symptoms rather than the causes of dispute. 

For the last six months or so, together with other interested groups, my firm has lobbied the main parties for a commitment to law reform to make litigation the last rather than, as it is currently, the only resort.

Specifically, we are calling for the establishment of National Conflict Clinics to work with separating couples. These clinics will offer separating couples and their children an environment in which to discuss disagreement and find resolution; whether through facilitated discussion, mediation, family therapy or through ongoing re-education of parents as to their responsibilities towards their children.

Parents who are reluctant to submit to this process can be discouraged from issuing proceedings by significantly increasing the cost of issuing applications for residence and contact orders, making ADR an attractive option for privately paying individuals. It will also minimise the number of trivial applications made to the courts, so that judicial time is reserved for the more difficult cases.

An amendment to the Children Act 1989 will be required to compel individuals to attend family therapy before they are allowed to commence proceedings for residence or contact. This would be subject to the overall discretion of the court to accept applications where, for example, there is pressing need for judicial intervention.

A further amendment will be required to the Act to compel recalcitrant parents to attend the clinics, backed up with the ability of the court to properly and effectively enforce its orders.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, 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.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.