Each year, approximately 46,000 private family law applications are issued in respect of children. These disputes usually involve parents, with around 10% involving grandparents or other family members.
It is estimated that 10% of separated families make use of the courts in arriving at child arrangements.
Delays
Proceedings in the family court across the board are lengthy, with the most recent statistics at the time of writing showing that private children cases are taking 44 weeks on average to conclude.
In cases where the court requests the completion of a section 7 (of the Children Act 1989) welfare report, there is a wait of 24-26 weeks in some parts of the country due to an overburdened and under-resourced Cafcass. Because of these wait times, some parents have opted to seek permission from the court to instruct an Independent Social Worker (ISW) to have the report completed, and matters concluded sooner. Multi-day trials often take 6 months or more to be listed, and at the end of all this, there are children awaiting the stability of resolution and fraught relationships between parties being exacerbated by litigation, which also impacts negatively on the children.
Anecdotally, there have been cases where I have been instructed at final hearing and instead of having a trial, my client, the other parent, their barrister and I have spent the day discussing, negotiating and reaching full agreement with little or nothing being referred to the court to decide. The question arises as to whether this could have been achieved earlier, away from a court building, using mediation, arbitration or early neutral evaluation and the answer to that is: probably, yes.
New applications in the family court in respect of children do require attendance at a Mediation Information and Assessment Meeting (MIAM) unless one of the exceptions such as domestic abuse apply. However, it is widely observed how often this is bypassed by unwilling parties or those who do not fully understand the process for lack of accessible information, and attendance has not usually been subsequently required by the court.
Legal updates
This conceivably was one of the reasons for the Family Procedure Rules being updated at the end of April 2024 to encourage more dispute resolution out of court. One of the key differences is that the definition of ‘non-court dispute resolution’ under rule 2.3(1)(b) now includes collaborative law, neutral evaluation (by a third party), arbitration and other forms of alternative dispute resolution (ADR).
Amongst other changes, rule 3.3 has an additional subsection (1A) which allows the court to require the parties to provide statements “setting out their views on using non-court dispute resolution as a means of resolving the matters in proceedings” and rule 3.9(2) has also been amended to require MIAM providers to give information about other forms of non-court dispute resolution and their processes.
These updates are positive but it’s worth considering whether more could be done to encourage dispute resolution outside of the court arena,
The role of family law practitioners
In paragraph 16 of, Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam) Mrs Justice Knowles commented that, “ Litigation is so often corrosive of trust and scars those who may need to collaborate and co-operate in future to parent children… Going forward, parties to financial remedy and private law children proceedings can expect – at each stage of the proceedings – the court to keep under active review whether non-court dispute resolution is suitable in order to resolve the proceedings. Where this can be done safely, the court is very likely to think this process appropriate especially where the parties and their legal representatives have not engaged meaningfully in any form of non-court dispute resolution before issuing proceedings.”
Collectively, as family law practitioners, we could be more conscious about ensuring that we’re proactively signposting to ADR and recommending this to our clients when appropriate- not just prior to the commencement of cases and early into them, but throughout. The success of this is dependent on collaboration with other lawyers involved, rather than taking an unnecessarily adversarial approach. Those of us with the interest and capacity could also take up some of these ADR roles more ourselves in complement to our practices, completing the requisite training/qualifications where they’re required.
It appears that non-court dispute resolution is gaining traction more quickly in family finance cases than in children cases. Browsing barrister’s chambers, particularly specialist family law sets, it’s becoming more frequent to see offerings of private Financial Dispute Resolutions (FDRs) and family law barristers, solicitors and retired judges marketing themselves as private FDR judges. A google search brings up several pages of results, many of which are explainers on chambers’ and law firms’ websites alike setting out the advantages: mainly that private FDRs are quicker and less costly than seeking an order through the court.
Dispute Resolution Appointments (DRAs) are the closest equivalent to FDRs in private children cases, but when searching for information on private DRAs online, there are very limited results, and seemingly only one chambers offering this service- which seems to be a missed opportunity.
Conclusion
There are private children cases that have complex legal, welfare or safeguarding issues, including domestic abuse, that are difficult or inappropriate to resolve without court intervention. However, for those that can be settled safely and efficiently using a form of non-court dispute resolution, there needs to be a culture change across the system for the benefit of these families, diverting their disputes away from the court and to a less litigious outcome.
Lola-Rose Avery, Family Law Barrister, Co-founder, Black Women’s Law Network