The Family Solutions Group report refers to a ‘series of scattergun initiatives’ and points to a fundamental flaw in the idea that children’s rights and welfare can be protected while they are not present in what is an indirect adult-driven agenda.
Kate Newton highlights key recommendations in the report of the Family Solutions Group to encourage non-court dispute resolution in private children cases
A pitch and a referee: this is what the court may in some cases provide separating couples with to ‘play out further rounds in their adult contest’, according to the president of the Family Division, Sir Andrew McFarlane (see:). Unfortunately, too many separated parents see their disagreements as legal issues. Although many people understand that a litigated process can be damaging, it is thought that around one-third of separating families still turn to the family courts, making the number of applications unmanageable.
The family justice system is in crisis, stretched beyond limits and in need of huge reform. And while alternative dispute resolution methods are providing quicker, cheaper and more amicable outcomes for some, there is an obvious void: families that could benefit from a non-adversarial resolution do not resort to it. Additionally, children of separated parents could be far better included and heard.
The need for a child-focused approach is nothing new. Thirty years ago, the Children Act 1989 introduced the idea that child welfare should be paramount. It is a message that those of us working with families have been advocating for a long time. We have been trying to guide parents towards a more collaborative resolution of their issues than can be provided by the courts. But it can be difficult for some parents to hear above the noise of their conflict.
Towards the end of 2020, a report by the Family Solutions Group, a sub-group of the Private Law Working Group established by the president of the Family Division and chaired by Cobb J, was published, titled What about me? Reframing Support for Families following Parental Separation. The Family Solutions Group aspired to:
… give fresh and focused attention to improving the experiences of, and opportunities for, separating families away from the Family Court.
Essentially, how can separating families be reached before they turn to the law?
The report makes several recommendations, and this article will focus on three of its sections: services for children and young people, services for parents, and the role of family professionals.
Services for children and young people
The report highlights the distinction between public law and private law. There is a ‘clear process through which the rights and welfare of children are protected and represented’ in public law, but there is no comparable process in private law (which governs far more applications involving children each year).
Nor does private law allow for a ‘universal overarching child-centered strategy or route map which is accessible and intelligible to the children who may need to use it’. There is a lack of clear policy on child protection issues and on hearing children’s voices. While direct services exist, they are primarily for adults. Unfortunately, little progress has been made since the Family Justice Review chaired by David Norgrove in 2011 called for more child-friendly and child-inclusive approaches.
The mediation information and assessment meeting (MIAM) process provided for by Pt 3, Family Procedure Rules 2010 (FPR 2010) and FPR 2010, PD 3A is aimed at diverting disagreements and contested issues away from the court. But the report points out that legal aid is very limited, and cites concerns that the incidence and impact of domestic violence in private law cases ‘has been consistently and dangerously underestimated’. The report therefore recommends an:
… urgent review of the arrangements for hearing children’s voices and protecting the welfare of children who are living or who have lived in violent households.
Hearing the voice of the child
As recommended in the Voice of the Child Dispute Resolution Advisory Group report, there should be a:
… presumption that all children and young people aged 10 and above be offered the opportunity to have their voices heard directly in all processes for resolving issues between parents, including mediation and solicitor-led processes.
The report refers to a ‘series of scattergun initiatives’ and points to a fundamental flaw in the idea that children’s rights and welfare can be protected while they are not present in what is an indirect adult-driven agenda. It further recommends that those conducting processes ensure that provisions are put in place for a suitably trained professional, such as a child consultant, a child advocate, or a mediator accredited to meet with children, to hear children’s voices. This must be offered within solicitor negotiation, collaborative law and arbitration (for example), unless there are agreed contraindications.
The report contains various other recommendations aimed at lessening the negative impact of parental conflict on children. Giving children a voice is key to this, and can lead to ‘more durable agreements; improved parental alliances; better father-child relationships and more cooperative parenting’, says the report. It can also enable the child to cope better with the relationship breakdown.
This section of the report also considers information and signposting services, and children and young people’s access to court. The core recommendation is for:
… a framework of direct support services of information, consultation, support and representation for children and young people whose parents separate…
Services for parents
An early distinction needs to be made between adults who cannot reasonably be expected to work together (and who must be directed to specialist support and/or the court), and those who can. The report says that:
… we need to move away from old assumptions that family breakdown is automatically a legal issue in which parents work against each other and towards an acceptance of ‘working together’ as the norm where appropriate, with professional support alongside to resolve issues.
Long-term vision is essential. We need to look beyond the resolution of a particular issue and help build cooperative parenting relationships.
The report makes observations about the language used in disputes about children. Outmoded words such as ‘residence’ and ‘contact’ are still in circulation. Even ‘parties’ and ‘versus’ are unhelpful. One suggestion in the report is for the case to be in the child’s name, which could focus minds in the right direction.
Overall, there is a need to use language that better reflects the task of parenting from birth until adulthood.
Information and support
To change societal attitudes to parenting and relationship breakdown, there needs to be a public education campaign that reaches not just parents who separate but also the wider public. The main message? An acrimonious divorce causes harm to couples and children.
Among other things, the report recommends creating an overarching website that provides clear, authoritative information. This could combat the problem of parents having to find their way through confusing and overwhelming data of variable quality.
To ensure consistency of information provided to separating parents, and a holistic approach to family breakdown, there needs to be a joined-up approach between all those working with families. These include legal professionals, teachers, GPs, health visitors and youth workers.
Schools should be a particular focus because of their early knowledge of problems within families. The report recommends that teachers, and other non-legal professionals, should get training material which will help provide ‘clearer routes to information and support for young people of school-age whose parents separate’.
Early information and assessment meetings (IAMs)
The report says that intervening with the right network of support at an earlier stage than a statutory MIAM currently provides for will ‘divert many couples away from contested court proceedings and towards better outcomes for their families’. The IAM would try to shift mindsets towards a child-focused, future-focused goal of cooperative parenting. It would also direct each case to the appropriate pathway (as explained below).
An IAM would be similar to a MIAM, because it would involve an exchange of information (not legal advice) and an assessment of options. But it would ‘not take place in the shadow of a court application’. Nor would it suggest that mediation would be required.
The report notes that parents ‘do not want to be told to mediate; they need information and encouragement to choose a non-adversarial route themselves’. On a legal, rather than parenting, issue the parent could be directed to a solicitor for legal advice, which, the report proposes, should be free for those assessed as needing it.
Choice of pathway
Ideally, families must be set on the right pathway as soon as possible after separation. For some (where there is domestic abuse, for example), that will be ‘the safety pathway’. It will signpost them towards the appropriate legal and other support, and the family courts may need to intervene. For others, it will be ‘the cooperative parenting pathway’, which will help parents understand their child’s long-term needs and show them options for resolving their issues with the other parent. This means working together, with professional support where appropriate, and not being drawn unnecessarily into legal disputes.
The two pathways cannot become mutually exclusive. The report says:
The development of safe processes, with appropriate screening and safeguards, in cases of family conflict where abuse has been suffered is not ruled out by the court-based pathway; the two interventions must keep talking to one another, at a strategic level and in individual cases.
The report highlights that some mediators have perhaps been ‘too willing to offer mediation in situations where it is unsafe’. It also says there are situations in which victims of domestic abuse have been more afraid of court than of mediation, and leaning on mediators as the ‘lesser of two evils’.
The report states that mediation is never the answer in an abusive relationship. In some cases, it may play an important role in the recovery, but only with the right support and once the victim is safe.
The report says that ‘[u]nresolved emotional conflict has to be addressed if parents are to be supported towards cooperative parenting over the longer-term.’ As family lawyers, we see daily the emotional challenges that separated parents face. I wholly endorse the report’s message that court is not the right setting for emotional issues to be played out (although it remains crucial in abuse or protection cases). There should be a ‘bundled package’ of legal information, counselling and mediation for parents struggling to agree child arrangements. There should also be greater use of Resolution-accredited family consultants who can work within and alongside legal practices. The emotional state of the parents should be taken into account as part of a holistic approach to resolving family disputes.
Just as all family practitioners should have basic training in the emotional issues arising on separation or divorce, it should become the norm for separated parents to attend a registered parenting programme. Such programme should include advice on how to improve communication and reduce conflict.
Role of family professionals
Family solicitors are just one category of ‘family professionals’ that play an important role alongside the separating family. Others include barristers, mediators, therapists, parenting experts and child consultants. The report sets out a series of recommendations around the involvement of these professionals, including:
Broader understanding of dispute resolution
Family professionals need to ‘use appropriate language and offer the longer-term perspective right from the outset’. They should, the report says, provide a:
… gentle and consistent voice towards a functioning future cooperative parenting relationship and to encourage processes which support that goal, rather than set parents against each other.
‘Resolving issues’ should replace ‘dispute resolution’ as there may not be a single, specific ‘dispute’ but many different issues evolving over time. Additionally, ‘resolving issues’ is less legalistic.
We should have a broader understanding of the resolution options available to families. And we must keep in mind three principles, to ensure a child-focused approach: Are parents working together in the process or apart? Is the issue being framed in the context of the long-term family relationships? What language is being used in the process?
We should be prepared to ask ourselves when we close our files: In what state have we left the parent relationship? Will the parents be able to manage eye contact at handovers?
Family professionals working together
The report highlights that:
… [s]eparating families in conflict have multiple needs that no one set of professional skills can adequately meet.
The report recommends a move towards local networks of family professionals. These include collaborative practitioners, mediators, arbitrators, family consultants, child consultants and local therapists specialising in family separation. Family law practices should nominate a dispute resolution specialist who would be part of that local network and who should make sure that clients know from the outset their options for resolving issues.
Longer-term, the report’s writers would like to see an overarching ‘family profession’ created, to include different specialisms and a focus on the separating family’s wider needs, with an emphasis on safety, child welfare and co-operative parenting.
This article touches on just some of the recommendations in the report and it is well worth a read in full. Points that particularly stand out are:
- it is critical to identify the appropriate pathway early;
- domestic abuse situations (where there is a perpetrator and a victim) and high-conflict separations (which could potentially be helped by mediation) should be differentiated;
- many parents (other than those on the safety pathway) can find their own answers, if they are given the right advice and support and boundaries;
- consideration should be given to how the process to resolve a particular issue will affect the relationship between parents;
- language used should be carefully considered, to avoid family issues being seen as legal; there should be investment in training on the emotional issues arising on separation or divorce; and
- hard-hitting questions to ask when closing each file should be kept in mind, for example, as to what state is the parent relationship left in and whether the parents are able to manage eye contact at handovers.
Kate Newton, ‘Private children: Facing the issues’, (May 2021 #203) Family Law Journal, https://www.lawjournals.co.uk/2021/04/09/family-law-journal/private-children-facing-the-issues/