The end of contentious divorces?

To attempt to reduce the strain and backlog faced by families, the Family Justice System is currently undergoing significant changes. There is a push to demonstrate a commitment to resolving matters away from court, starting with the introduction of no-fault divorce and extended funding for mediation for disputes concerning children (£5.38million this financial year, raising the total invested in the scheme to £8.68million since March 2021)

The mediation voucher scheme provides up to £500 towards the cost of mediation for parents attending meditation to discuss the care of their child or children. By enabling divorcing couples and parents to resolve their disputes without litigation, it will enable the court to utilise its limited time on cases that require the adjudication of the court.

The emphasis on mediation and no-fault divorce is reflective of the desire for most separating couples to deal with the practical consequences of their separation in a private and constructive way.

Since the introduction of no-fault divorce, the number of divorce applications have increased; HMCTS received 3,000 divorce applications in the week following the introduction of reforms in April, which is a 50% rise on the weekly average.

This demonstrates people’s desire to wait for the law to change, so that they can proceed in this new neutral non-adversarial way.  There is no longer a requirement to provide a reason for the marriage coming to an end, giving people greater respect for their private life, as well as removing the blame element of divorce previously seen.

This change in law sets a more amicable tone from the start, and therefore places people in a better position to make decisions about the children and their finances.

Cafcass statistics show that in 2020/21, there were 97,496 children involved in private children proceedings, an increase of 23.1% since 2016/17. In public law, there were 143,129 children, an increase of 16.4% since 2016/17, with cases taking an average of 45 weeks to conclude.

These increases are not sustainable, and the need to reduce the number of families in the Family Justice system is significant. The focus on solutions achieved through agreement is to the benefit of both families, and the Family Justice System and the court are increasingly robust at encouraging parents to consider alternatives to litigation.

Recently in the case of Re B (a child) (Unnecessary Private Law Applications), his Honour Judge Wildblood QC said:

‘Do not bring your private law litigation to the family court here unless it is definitely necessary for you to do so,’ he said. ‘You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.’

The commitment to further funding for mediation follows research that mediation helps families reach solutions and outcomes that are best for their children.

The FMC conducted a survey which showed that mediation is successful in over 70% of cases. The funding enables parents to access mediation in circumstances where it would otherwise be unaffordable and encourages people to proceed with this option.

It has raised the profile of mediation, as FMC research further showed that after an initial meeting, three quarters chose to mediate, and that

“This is despite the fact that many don’t know anything about mediation, or think their partner is so unreasonable that mediation will never work”.

It should not be surprising to hear that parental preference is to reach an agreement, rather than battle it out in court, and ultimately receive an order imposed upon them by a Judge who doesn’t know them or more importantly their child.

Most parents are acutely aware that while their marriage or relationship has come to an end, their relationship as parents has not. And however, hard it may be for them as an individual, as a parent they want to do the best for their child.

The option to attend mediation provides parents with the opportunity to communicate, explore the issues, discuss the options and resolve the matters that are important to them.

A Judge is unlikely to hear arguments on the appropriate amount of screen time for a child, the choice of gifts each parent buys for their birthday, or how the parents will explain to their child about their new routine now that their parents live apart.

All these things can be discussed and agreed upon in mediation. As one Judge said recently:

“I cannot order people to be nice. However, in mediation, parents can discuss matters and hopefully improve their communication so that they have the tools to resolve disputes, thus avoiding court now and in the future. The court must make decisions in the best interests of the child. 

However, court proceedings are often protracted, emotionally and financially expensive, and consequently damaging to the child and their parents.

Mediation is not appropriate in every case, nor is it always possible for parents to reach agreements. We need our Family Justice system to work effectively and efficiently for those families.

For example, in cases where there are allegations of domestic abuse, safeguarding concerns such as drug or alcohol abuse, parental alienation or protracted disputes. The court is a finite resource, but there must be access to our Family Justice System.

Lord Neuberger said access to justice:

“has a number of components. First, a competent and impartial judiciary; secondly, accessible courts; thirdly, properly administered courts; fourthly, a competent and honest legal profession; fifthly, an effective procedure for getting a case before the court; sixthly, an effective legal process; seventhly effective execution; eighthly, affordable justice.”

The focus on dispute resolution options, such as mediation, is not designed to take away access to justice, but to create a Family Justice System that provides families with options to resolve their disputes in a way that is most appropriate for their circumstances.

The introduction of no-fault divorce and continued funding for mediation enables the focus to move from conflict and confrontation to communication and solutions and enables our Courts to work more effectively for those who need to litigate.

Gemma Davison is a Senior Associate, Thames Valley & Head of Oxford at Stowe Family Law.