Separating parents - is there a better way?

Responses to the Family Justice Reviews interim report on family law reform were due in June: We examine the problems the current system highlighted for separating families, the proposed solutions and the Law Society’s response.

What is the Family Justice Review?

The Family Justice Review was set up by the Ministry of Justice, the Department for Education and the Welsh Assembly Government to review the family justice system.

The Family Justice Review panel consists of professionals from a broad section of organisations and individuals working within the family justice system. It includes the director of children’s services from Hampshire County Council, a High Court Judge who is the Family Liaison Judge for the Midlands, the Chair of the National Children’s Bureau, and the Children’s Commissioner for Wales.

Their aim is to improve the family justice system so that it is quicker, simpler, more cost-effective and fairer whilst continuing to protect children and vulnerable adults from risk of harm. The report focussed on the law relating to children. In 2010, 122,000 children were involved in disagreements about their living arrangements. For 10% of separating parents the court can become the forum for long, bitter disputes about their children. Parents and other family members, such as grandparents have expressed concern that the process can take so long that existing arrangements become entrenched. The process can also be costly. 

The Review

The Review indicated that the court cannot “fix fractured relationships or create a balanced, inclusive family life after separation”. Where possible, disputes should be resolved through dispute resolution services such as mediation – the court should be the port of last resort. The parents should be encouraged to enter into a Parenting Agreement dealing with the important aspects of their children’s lives. Contact and Residence Orders should be replaced by an order stating how the child’s time should be divided between their parents to remove the feeling of winning and losing the court case. 

An important element of the reviews recommendations is establishing an information hub and helpline to support people at the beginning of their separation or divorce. The hub would collate the information the parents are likely to need about mediation, the court process etc to help them to make informed decisions. Parents should also be required to attend a Separated Parents Information Programme which would include a description of the law, the court process and likely costs. Mediation is encouraged. 

The court process should also be streamlined. There should be a dedicated family service and a single family court. The three tiers of court currently dealing with family work (the magistrates, the district judge and the circuit judge) would all be based in the family court and the case would be allocated to the correct level of court depending on is complexity. The same judge should preside over all of the hearings in complex cases. Where a court order is breached, it should be returned before the judge within a fixed number of days and dealt with swiftly. 

The Law Society’s response

The Law society welcomed the introduction of a dedicated family service and a single family court. They felt it is crucial that the children’s wishes and feelings are central to the new service. Further, they supported the concept of developing an online information hub and telephone helpline, but indicated that it was not appropriate for everyone. 

The Law Society was very concerned that the correct investment is made to implement the proposed changes. “A botched implementation, caused by lack of investment, will only make the existing system worse. In our view, this change should be made only if there is proper financial resourcing to ensure its success”. 

Law Society president, Linda Lee, said “While we do not agree with all the review proposals, we recognise that no proposed solution to system problems of this magnitude can be perfect.” 

Conclusion

The family courts do assist a great many families during one of the most difficult periods of their lives. For some, the system offers a good service and sensible resolution. Others feel the system is cumbersome and expensive without a full resolution at the end of the case. 

The reviews recommendations represent a radical overhaul of the system. Whilst information hubs, mediation and Separated Parents Information Programmes will help some parents resolve disputes surrounding children, it will not suit everyone. Some issues cannot be resolved by parents and court proceedings are necessary to move the family forward. In such cases, information obtained from a hub cannot do the same job as good legal advice (tailored to a parent’s circumstances) about the likely outcome of any court proceedings and how their case can be improved. 

From June 2011, the vast majority of parties to a dispute have to attend a mediation information session before they can start court proceedings relating to children. This can be frustrating when one parent believes the other will use this to delay proceedings where they have no intention of reaching agreement. Other families find mediation does enable them to resolve their disagreements without a solution, which neither of them may be happy with, being imposed on them. One size does not fit all. 

Where court proceedings are necessary, the system needs to be quick and efficient to prevent families becoming entrenched, leading to years of heartache for parents and, most importantly, their children. At Birkett Long, we agree that the proposed solution to the system problems is not perfect, but properly resourced, it may be a step in the right direction for some families. The final report is awaited.