Consultation response from the charity Families Need Fathers/Both Parents Matter.

This response is organised as follows:

1. Brief summary and overview
2. About this charity and its role and stance
3. Overview of mediation, its value and reservations
4. The need to set these proposals in two contexts, the inappropriateness of the current arrangements to the issues before them and promoting the welfare of children overall.
5. Removing or mitigating perverse incentives
6. Answers to the specific questions asked.

It is hoped that 1-5 will be brought to the attention of Ministers and senior officials. We will be asking for a face to face meeting in due course. 

1) Summary and overview.

The two fundamentals of our family law are set out in the Children Act 1989. They have nearly universal support in principle. The first is that the welfare of children should be the paramount consideration. The second, rather less than well observed in practice, is that delay is to be normally regarded as against the interests of children. 

The United Nations Convention on the Rights of the Child,  is UNICEF claims, the most widely accepted such document in human history. The United Kingdom has ratified it but in material respects does not implement it. 

This response is based on these principles. 

The proposals in this paper, in the context of the current unsatisfactory arrangements, are welcome with the qualifications set our below.  

They represent progress that has our support. It is far from adequate if set in the context of what needs to be done to promote the welfare of children, either under the CA 1989 or the UNCRC. 

Effective promoting the welfare of children whose parents cannot live together requires more fundamental changes. The most important of which is recognising that where parents split up, in all but exceptional cases,  the children will benefit from retaining a full and free relationship with both their parents and their wider families both sides. 

This is an across-the-board stance which impinges on almost every sphere of social and government arrangements. They are particularly relevant when formal decisions have to be made if the parents who separate fail to agree. 

We would like to see the aspirations of this paper applied across the board. That promoting co-operative parenting, with the occasional exception where that would harm children, should be substituted for arrangements that currently set the parents against each other. We believe this to be the position of the Government too. We will be happy to discuss further with them what we can do to help.

At present, however, there are even some perverse incentives. 

Without action in other areas, and without precautions (to be outlined below) there is a risk that some aspects of the current proposals may make things worse.

2a) About this charity and its stance

2b) Ways in which this charity can help the Government further. 

Families Need Fathers, soon to be renamed Both Parents Matter, is the respectable and established charity to promote the rights of children to a beneficial relationship with both their parents (and their wider families) even if they cannot live together full time. 

Until ‘austerity’ we were government funded. 

We are changing our name to better reflect our stance, work, membership and support. This includes parents of all characteristics, their partners, grandparents and wider families. Half the children whose rights we support are, of course, female as are their extended families.  Inevitably we are approached for help by parents and others who have behaved in unacceptable ways. They get no support from us unless they are willing to become better parents and partners.  

While most excluded parents are fathers, when fathers get possession of their children they too sometimes try to exclude their mother and her family. We then support her children’s right to her. 

We are an equal responsibility charity that respects diversity. In some areas most, even nearly all, attenders are from a ‘minority’. Some are multiply disadvantaged by unfamiliarity with British culture, sometimes language and particularly with our legal procedures. We are sometimes humbled  by service users’ bewilderment that there is nowhere they can go with their problems and, if they have a convincing case, just get it sorted simply. 

Our first task in pastoral work, to support parents whose children are prevented from seeing them at all or enough to get time with their children and to use it for the best. We do this by the traditional means. A website, a telephone helpline, an internet forum, leaflets and guides, support services from a network of local volunteers, regular local meetings, WhatApp groups etc. We have – and are proposing to develop – parenting courses with an emphasis on problems encountered by parents living apart from their children. These emphasise the need for parental co-operation, but inevitably have to cover how to cope if that is not reciprocated. 

We have niche groups helping people with particular problems, such as children removed overseas. Or where parents with physical possession of the children cause them to claim that they do not want to see a loving and formerly loved parent. Or shared parenting issues where a parent or child has a disability. More are planned.

Our second task is educational and lobbying work of the sort charities have always done:- trying to persuade those people making and applying the relevant law and procedures to better respect the relevant rights of children. Of particular authority with us is the United Nations Convention on the Rights of the Child, passim but particularly Clause 9 and related. These concern children’s rights to be brought up by their parents, and to a relationship with a parent they are separated from unless that has been deemed to be against their welfare. 

2b) Ways in which we can help.

Everyone claims to want the best for children whose parents live apart. The problem is applying it in individual cases. This charity is opposed by other powerful agencies who may appear to agree with this in principle. In practice, they seem to see the issues exclusively as ones of conflict on the basis of the sex of the adults in dispute. They appear to support the female parent in every individual case brought to their attention. Their lobbying demands, and presentation of the issues are similarly discriminatory by sex. Often the demand made is for the exclusion of a (male) parent from the lives of the children. 

Our charity will have none of this – hence the proposed change of name. We seek the best for the children. This leads us to distance ourselves from policies and promotional activities that emphasise the sex of the adults or which deploy (and perhaps promote) stereotypes. For us it should be individualised assessments of what they offer their children.

Effectively all our representations are for the adequate involvement (the term of the 2014 amendment to the Children Act) of their ‘other parent’. We will not support those seeking to prevent, belittle or minimise the contribution of the other parent to the lives of their joint children. If a ‘change of residence’ might seem to be indicated, as it occasionally is, our stance is that the parent who gets it should respect fully the right of the children to a relationship with the other. Unless, of course, in rare circumstances, this would be against their welfare. 

We wish to support the Government’s objectives on the assumption that they too wish to see children retain and develop parental relationships that will enrich their lives. 

We trust that the Government will want to work together with us. We would like to be involved in Government and quasi governmental (eg the Judiciary) services to this end. We hope that one response to this paper will be the opening of doors over information points, online tools and hubs, representation on consultative groups and the like. 

In return, we can offer two things – information about the perspective of half the parents involved in   the issues covered by this consultation and this response. And to deploy positively a capacity to make a difference to their behaviour. For example, just one of our branches (admittedly the biggest) had nearly 1,000 attendances a year pre Covid. Numbers are increasing again. 

3) Overview of mediation, its value – and reservations.

This charity was part of the alliance which successfully suggested that an attempt at mediation be required before an application for a Child Arrangements Order was accepted, unless there were grounds for exemption. Maybe we even had a role in overcoming the reservations about the proposals from some mediators themselves, on the grounds that it had to be wholly voluntary. 

We welcome the firming up of the requirements to engage. 

We welcome too the increasing professionalisation of mediation services. There remain, however, others that can help, particularly counselling agencies.  Many of these are developing their services further to people in ‘these situations’.  Sometimes there are other family members with a positive role – grandparents are often helpful. Others, such as faith leaders, sometimes also have an important role. There should be promotion of good practice, but no monopoly.

The use of the ‘voucher’ to help fund approved mediation services is warmly welcome and has been widely used by people we are in contact with. It needs to be retained and extended. Quite a number of our people would have otherwise had serious problems paying for it. 

Users of this charity’s services are encouraged to seek non-adversarial solutions to their problems. They are warned about the downsides of going to Law. Courts should only be used if there is no alternative.  

We have, however, three reservations about mediation:

It can cause delay.

The consultation notes that the average time to ‘complete’ a private family law case is 40.5 weeks. We do not know the details of how this figure was arrived at but note two things. It is possible the clock starts is when a C100 (normally) is accepted. There will usually have been considerable delays already, before the excluded parent has come to realise that this is what they need to do. Secondly, many litigated cases seem to be settled just before a hearing, sometimes the first one.  If these were stripped out, how long do the ones that go through the whole procedure take? 

It is common, and may even be usual in cases that eventually go to court, that the children involved were prevented from seeing their ‘other parent’ from the moment of parental separation. This is a cause of serious, occasionally alarming,  distress to both the children involved and the excluded parent. Delay works to the benefit of the parent who has physical control of the child. They can establish a new ‘status quo’, for example in housing or a new school. They can influence their child(ren) against the other parent and so on.

Mediation itself can cause delays, organising it and the gaps between discussions. These delays are sometimes weaponised by the parent with physical possession of the children.  Some of them may have had no intention of coming to an agreement but want to prevent a decision.

Many of our service users are, currently, almost relieved if domestic abuse is alleged – the procedure that may end in a decision has actually started.

How to minimise this delay needs to be discussed. One suggestion is that the C100 is accepted immediately, but mediation then follows with a deadline of the first hearing. If mediation has failed and been refused attention should be drawn to this. Whether mediators should report to the court should be a matter for consideration. Mediators may have grave reservations about this, but the – usually very different - views of the parties should be on record. This change may improve engagement of the parents with the mediation process.

There are difficulties in making the meetings sufficiently child-centred.

The parents, the adults,  are the parties. There are no direct advocates for the needs of the children. Our charity often sees parents who are too locked on to their own grievances to have a full view of the needs of their children. The same must be true of people supporting the other parent. Our task is to overcome such feelings with those parents who approach us for help. They should put their children first. However, when people feel their ex has wronged them deeply, the emotional pressure is there.

Deals between the parents surely overlap with the needs of the children. They are not always the same. They could, for example, agree that the father would seek no parenting time and the mother no maintenance. The writer of this note once went to a meeting about mediation in which the speaker presented as a ‘success’ that a father had withdrawn his objection to his children being re-located to Australia. 

A trained mediator may well try and keep the discussion focussed on the children. They will sometimes, however, encounter difficulties in this. They cannot, of course, directly advocate what seems to be best for the children. 

Child focussed mediation, including the mediator having had contact with the children is mentioned. It needs to be encouraged and training provided.  This would be an incomplete step towards what we would like to see. That would be – an attempt to broker a parenting plan which puts the children at its centre. This is developed further below, but we would like to see tests against which parenting plans should be assessed. 

The biggest difficulty, however, is this. The meetings are in the shadow of the results at court.

All negotiators in all situations agree, the final outcome of ‘voluntary’ discussions rarely depart from the power positions of the parties. Many of our service users quote their former partners as saying (and many more will surely be thinking) something like this. ‘Why should I agree to give you more than the courts will give me?’ If they believe the courts will favour them, that might be too attractive for them to come to an agreement. Until the family courts are child-centred and fair, mediation will not be.

At present, what goes on in court is secret. It is not disputed that the identity of children needs to be protected. However secrecy has these disadvantages. The substantive outcomes – what courts order - is only even approximately known by those who are regularly there. Litigants have to rely on what they are told, often by lawyers seeking to attract their custom. This encourages litigation rather than settlements. Secondly there can be no rebuttal to allegations about what goes on there. Thirdly it leads to inconsistency and it makes it more difficult to remedy it. Lastly, bad practice, either by lawyers or the courts themselves carries few risks. The quality of administration, for example, is erratic. The conduct of some Judges and magistrates is on occasion questionable. We welcome the increasing number of judgements that are published. These will, however, naturally enough, be skewed towards the better decisions.

This charity has for long advocated this: that similar principles apply to the family courts as to the criminal ones. That they are open, but with safeguards to prevent the identification of children.

4) The need to set these proposals in two contexts, the inappropriateness of the current arrangements to the issues before them, and promoting the welfare of children overall.

There are two major and strategic omissions in this consultation paper. They are beyond its specific remit, but are about the context in which it should be placed. Remedies to them would require more fundamental change, but they need to be thought about.

The inappropriateness of the current arrangements to the issues before them,

The first is that children’s matters are quite different from other private civil law. The application of principles applicable to the others lead, in family disputes, to serious distortions. 

The majority of other private civil disputes between the parties in court with – it is assumed – no implications for others. They have little impact, in the normal case, on others or the wider society. Private Family Law is quite different. First, they impact on children who are not parties.*

The results have long term implications not only for the children but for society as a whole. A high proportion of our children are affected, directly or indirectly, maybe two out of five and rising. 

Private civil law cases are adversarial. It is one parent against the other. It is they, the parents,  and not the children, who are represented. It is often presumed, particularly if there are paid advocates that what their client wants is to minimise the role of the other in the lives of the children. We see this in cases where the representative of (usually) the mother** realises the Court is going to allow the children to see the father**. Her lawyer when they see this, usually moves straight on from this realisation to trying to make the children’s time with their father as difficult, restrictive and expensive as possible. 

The role of the Court is that appropriate to adversarial proceedings. To oversimplify a bit, it is to observe, as if they were a boxing referee, the attacks of one side on the other, and awarding victory to the one who does most damage to their opponent. The stance should be different. It should be exploring and extending common ground and making orders that reflect that. Some judges (but in our experience rarely magistrates) attempt that. It should become standard.

Another inappropriate carry over from other civil procedures is the criterion of ‘proof’ being the balance of probabilities. In other civil proceedings there may be more alternative. Not so in family proceedings. The test there should be – is the evidence sufficient to justify the decisions proposed? 

Lastly, family proceeding are, again unlike other civil actions, looking to the future. Other civil actions are about the past. If the evidence is unclear, for example whether parenting time with the children will be positive, there can be monitored trials, for example use of a contact centre. 

This government has instituted two changes in the right direction, and our charity welcomes this. They should, however, be driven further. Our charity had a role – perhaps the principal one – in both. 

1)The first was to abolish ‘residence’ and ‘contact’ orders (though the thinking and sometimes the terminology still carries on). They were replaced by ‘child arrangements orders’. The idea was to avoid ‘victories’ and ‘defeats’ and encourage more even handed and flexible arrangements. 

2)The second was to amend child maintenance rules. The then Child Support Agency as originally conceived divided parents into those ‘with care’ and ‘absent’. (The offensive term ‘absent parent’ has largely disappeared.)  No provision was, originally,  to be made for any costs falling on the ‘absent parent’ for time with the children. There are now some, if inadequate, financial  provisions for parents whose children are with them some of the time. 

*‘Public’ family law is different: there is normally someone, often a Guardian, tasked with representing the children. Not so in private cases. The children in public law also have a statutory right to a relationship with both their parents, unless a Court has ruled that this would be against their interest. These requirements conform to the UNCRC. Children in private law have no such right. The parent who has achieved or been granted physical control of the children does no wrong in preventing them seeing the other. The other parent has serious obstacles to overcome before they are allowed to see them. 

**Exactly the same seems to happen when the sex/gender is reversed. Parents seeking this get no support from us.

The cases should not be parents opposed to each other. They should be working together for the benefit of the children.  The proposals in this paper reflect this – but the same principles are not applied where it is more important. 

The need to promote the welfare of children

The second defect is this – there is nothing said about what benefits to the children should be sought. 

It seems to be assumed that anything the parents might agree in mediation is ‘good enough’. This would be an improvement. It is not sufficient. 

A minimum baseline would be the stipulations of the UNCRC. One of several would be their right to an identity, usually interpreted as requiring a relationship with their parents, wider family and their culture.

Another that they have a right to regular contact with the parent with whom they do not mostly live, unless a ‘competent* authority subject to judicial review’, has ruled that this would be against their welfare. 

Parents and others are often locked on to ‘fair’ or ‘appropriate’ shares. Many of our service users ask for ‘equality’. 

This charity has another approach. That the division of time/parenting plan should be assessed according to how well it meets child welfare goals. A paper was prepared for a meeting with the former President of the Family Division with initial ideas.  They include: that it should enable positive contributions made by both parents before they separated should be preserved as much as possible; that it should enable both parents to support their education; that there should be provision for sharing ‘special days’ in the lives of the children (such as their birthdays) and in their culture and extended family; that it should provide for contact with the wider family both sides; that is should enable children to see their parents lives ‘in the round’. for example that they both need to work; that it should not encourage sex/gender stereotyping…. and more. 

More work needs to be done to ensure that parenting plans in mediation (and of course court ordered) meet child welfare tests. 

5) Removing or mitigating perverse incentives

The issue of domestic abuse and violence per se is outside the remit of this charity, unless it impinges on the welfare of the children. This is, of course, sometimes the case. Naturally we share the attitudes of all decent people towards domestic violence and abuse. Namely that it is repugnant, needs to be prevented to the fullest extent possible whatever the characteristics of perpetrator and victim, and dealt with robustly when it occurs. 

The impact of this issue on the family courts has, however,  been transformed by LASPO, the withdrawal of legal aid in family proceedings unless there are allegations of abuse. 

We welcomed, and had argued for, the withdrawal of legal aid. In our view the involvement of lawyers – with exceptions – worsened and prolonged the proceedings. It made them more adversarial between parents to the disadvantage of children, as set out above. It gave an incentive to complicate and prolong the proceedings. Above all it brought in inappropriate material. It makes the 

*The principal language is French. This means ‘having the authority’ though we would not be averse to the interpretation of ‘up to the job’!

proceedings legalistic rather than seeking solutions to family disputes. Most of them are essentially human relations, practical and psychological child care problems. The increasing number of published judgements has added to this feeling. Many of them contain long, detailed interpretations of Law and of precedents. Impressive in a way – but totally disproportionate to the issue and a waste of resources! 

There should have been one exception to the withdrawal of legal aid, vulnerable people needing support, for a raft of reasons, such as various disabilities in dealing with procedures. But not on the grounds of what they were alleging. This was ethically dubious – conflicting with the Natural Justice requirement of ‘equality of arms’ and possibly the Human Rights stipulation of a fair trial. This created an incentive to make them, and for lawyers to seek replacement for lost business. 

The hoped for financial savings have not been achieved.  Family court allegations of domestic abuse have soared in a way that is quite disproportionate to other evidence of the incidence of abuse.  FNF/BPM has seen this in its support work. There always were some service users so accused. There are now support meetings where every single attender is so accused. 

The sheer number of these allegations will severely limit the impact on the family courts of any diversion of cases to mediation. Parents seeking to avoid mediation may even allege abuse to avoid it. Domestic abuse is not the only case in human history where there are no lies when there are advantages to be had from telling them.

Two issues need to be explored. The first is to deter false or exaggerated allegations by creating penalties if allegations prove to be clearly unfounded. There are currently no penalties and therefore no risks run. In the event of clearly invented allegations, costs could perhaps be awarded to the other party, or legal aid required to be refunded, at the discretion of the Court.  

The second, more specific to this consultation, would be this. Should allegations, before exemptions from mediation be accepted,  be triaged as to whether mediation is counter-indicated? Especially if shuttle, or remote, mediation is available? Or if the mediation arrangements are clearly safe, with precautions akin to those used in the Probation Service for clients deemed to present risks?  Ones that might be deemed suitable might be ones where the incidents were low in the scale of gravity, or some time ago, or when the person alleging abuse had clearly not been over-awed previously. 

The third, again outside the remit of this consultation but a necessary part of the overall picture, is the issue of ‘interim contact’. That is, what contact there is to be between children and their excluded parent before the proceedings are complete. In a considerable number of cases, the current answer is – there should be none. This is a concession to the parent who has made allegations and demanded by their legal representative. This charity has to tell service users that, even if they are ultimately totally cleared of all charges, it may now be two years before their children are allowed to see them again. Often it will then be alleged that the relationship has been broken, and has to be phased back in. The children may have absorbed the view of them that originates in the feelings of the parent who has excluded them. Their ‘wishes and feelings’ will reflect this, and so the issue goes on, often requiring more litigation.  A considerable number of them, we believe, give up.

Children, some of whose fathers (this may happen, but rarely, to mothers) may have done nothing wrong, lose any benefit they may have had for the remainder of their childhood. There is sometimes a major downside. The children make contact when they are old enough, found that they have been lied to, and judge their mother for it.

‘Interim’ contact has to be safe. Any risk to the child has to be avoided. This can usually be done by the use of contact centres, which are safe environments and where the parents can be kept apart. This option is often neglected.

Issues to be thought about. 

6) Answers to the specific questions asked.

Question 1

Are you in favour of a mandatory requirement for separating parents (and others such as grandparents) to attend a shared parenting programme, if they and their circumstances are considered suitable and subject to the same exemptions as for the mediation requirement (see chapter 3), before they can make an application to the court for a child arrangement or other children’s order?

• Yes
• No
• Don’t know

Please provide reasons for your answer

Yes, since parents should be fully informed before they go to court and provided that: (a) such courses should be about how to handle parenting after separation (b) such a programme does not cause delay in the litigation process, which would otherwise enable a parent who seeks to exclude the other to consolidate their position (c) any non-engagement is reported to the court.

Question 2

If yes, are you in favour of this being required before mediation can start?

• Yes
• No
• Don’t know

Please provide reasons for your answer

Yes but only if this does not cause delay (for the reasons as in Question 1).

Question 3

Should information on the court process (non-tailored legal information) be provided to those with a private family law dispute:

• at the mediation information and assessment meeting (MIAM)
• at the parenting programme
• via an online resource
• by any other means (please specify)

Please provide reasons for your answer

All and any others too, since different methods suit different people and situations.  

Question 4

Based on current online resources, what are your views on an online tool being provided by the government to help parents, carers and possibly children involved in child arrangement cases? What information and resources should any such tool prioritise to support families to resolve their issues earlier?

We fully support this and would like to contribute to the provision of such information and resources. There are many such resources though a priority would be to develop a child-centred parenting plan to be agreed by the parents.

Question 5

Do you think it is appropriate for mediators to determine suitability for a co-parenting programme at an information meeting? Please state yes/no/don’t know and provide reasons for your answer.

• Yes
• No
• Don’t know

Please provide reasons for your answer

Yes, provided the mediators are properly trained and follow guidelines in doing so. 

Question 6

Can you share any experience or further evidence of pre-court compulsory mediation in other countries and the lessons learned from this?

We note from the following study in Spain on equal parenting time (EPT) that mediation has been shown to reduce conflict in divorce proceedings, leading to remarkably improved relationships between non-residential parents and children, as well as between divorced parents.

The impact of equal parenting time laws on family outcomes and risky behavior by teenagers: Evidence from Spain

The authors note that EPT laws create the conditions for a negotiation process to arise between the parties of a divorce similar to the one that is intended to be achieved through mediation, since such laws equalize the bargaining power of both spouses in a divorce proceeding, act as an incentive for them to reach beneficial agreements for both parents and their children and, one of their main conclusions, EPT laws reduce contentious divorces.

Please also note the abstract: “Due to legal reforms, equal parenting time (EPT) laws in Spain now apply to approximately 40% of all divorces, with likely implications for family outcomes and teenagers’ risky behaviour. Consistent with theories of bargaining power within marriage, we find that EPT laws decrease contentious and wife-initiated divorces and increase the employment of mothers relative to fathers. An analysis of drug use and family relationships, among 165,000 teenagers, further shows that EPT laws significantly decrease risky behaviour by teenagers, especially boys, who claim to have better relationships with their father, although more clear norms for behaviour. These results have some international implications, such as for the United States, where more than half of the states are considering whether to adopt EPT laws.”

Question 7

How should the ‘MIAM’ pre-mediation meeting under this proposed model differ from the current MIAM?

Any changes should aim at minimising delay, for the reasons given in response to Question 1 above. 

Question 8

What should “a reasonable attempt to mediate” look like? Should this focus on the number of mediation sessions, time taken, a person’s approach to mediation or other possibilities?

This should be a matter for the Court. At the earliest time that can be arranged the mediator or course leader should give a summary of things to date. 

Question 9

a) Do you agree that urgent applications, child protection circumstances (as set out in the current MIAM exemption), and cases where there is specified evidence of domestic abuse, should be exempt from attempting mediation before going to court?

• Yes
• No
• Don’t know

Please provide reasons for your answer

a) A simple answer not possible. It has to start with ‘yes’, but with qualifications over allegations of domestic abuse. These vary from some of the worst behaviour that people ever impose on others, to things that are little more than unpleasant to be on the receiving end of. Any cut off point has to be arbitrary. Nor is there any knowing at this stage in proceedings whether they are true, exaggerated and on occasion, simply invented. There will be some in all categories. As said above, romantic relationships often end with bitterness and anger, for many reasons of which abuse is only one. The feelings engendered make it easy to say things against the ex that are not pedantically accurate. This is made worse by the incentives given to make allegations of abuse. One is avoiding the requirement to mediate. More serious is that legal aid is offered, if the income tests are made, to the party making allegations.  Worsened by two things – it often brings the accuser into contact with legal and support services who will, with barely any exceptions,  support the case, and further, argue it in an adversarial way. With it, come considerably better prospects of ‘winning’ a case. Sometimes on its merits, but sometimes by prolonging and complicating the proceedings so that the other party exhausts their financial and emotional resources.

The government is in a politically difficult position because of the strength and lack of balance in the pressures on them. This charity feels this. We are as opposed to domestic abuse as anyone, but counter arguments to the perverse incentives are liable to be misrepresented as denying the significance of the problem.

We fully support exemptions on the basis of evidence supplied by parties who have no reason not to be objective about it, such as the police or medical or social work professionals. There are questions, surely, to be asked about evidence supplied by organisations with an economic, political or ideological vested interest.  

In the interim, we have two suggestions. Firstly, that if a court finds that allegations are not merely false, but completely without foundation, there should be sanctions. Obvious ones are the awarding of costs to the other party and/or that legal aid should have to be refunded.

The second is that there should be a second triage of allegations, as to whether mediation is contra indicated. Obviously there will be cases where it would be. But there may be some where it is not. Work would need to be done to make difficult distinctions. There are some precedents, perhaps, in the recent judgement on ‘ex parte’ Non Molestation orders*, as to whether there was a need, or the situation justified, not hearing both sides.

Should mediation be contra-indicated when the allegations concerned were some time ago with no recent repeat? When they allegedly occurred in a situation (for example the parties attempting to live together) that has changed? Where there is evidence on the record that one party was not afraid of the other – for example they have met since? And whether mediation itself could have precautions? The most obvious would be shuttle mediation, at least as a first stage. Or where precautions can be taken to ensure safety? 

b) What circumstances should constitute urgency, in your view?

Urgency should take into account the length of time that a child has been prevented from seeing a parent. 

*Mrs Justice Lieven [2023] EWFC 46 Birmingham Crown Court 29.03.23. This deals with the circumstances in which, on grounds of urgency or significant risk, a Non Molestation Order should be granted without the other party being notified or represented. He commented that they were regularly given wrongly.

Question 10

If you think other circumstances should be exempt, what are these, and why?

If the scope of mediation is to be extended these should be kept to a minimum. 

Question 11

How should exemptions to the compulsory mediation requirement be assessed and by whom (i.e., judges/justices’ legal advisers or mediators)? Does your answer differ depending on what the exemption is?

The need is to make this simple, quick and cheap. It should therefore be up to mediators, whose professional body would develop a code. 

Question 12

What are your views on providing full funding for compulsory mediation pre-court for finance remedy applications?

Financial matters are outside the remit and experience of this charity.

Question 13

Does the current FMC accreditation scheme provide the necessary safeguards or is additional regulation required?

• Yes
• No - additional regulation required
• Don’t know

Please provide reasons for your answer.

We would like to see a development of the requirements and training to ensure that mediation is focussed on the needs of the children, and to reduce the risk of too great an emphasis on the attitudes of the parents towards each other. 

Question 14

If you consider additional regulation is required, why and for what purpose?

Please see response to Question 13.

Question 15

a) Should the requirement for pre-court mediation be expanded to include reasonable attempts at other forms of non-court dispute resolution (NCDR), or should it be limited only to mediation?

• Mediation only
• Other forms of non-court dispute resolution (NCDR)
• Don’t know

Please explain your answer

b) What are the advantages and disadvantages of expanding the requirement?

c) If for 15a you answered ‘other forms of non-court dispute resolution (NCDR)’, to what other forms of NCDR should it be expanded?

d) If for 15a you answered ‘other forms of non-court dispute resolution (NCDR)’, what accreditation/regulatory frameworks do other forms of NCDR have that could assist people in settling their family disputes in a way that fits with the legislation that applies to private law children cases and financial remedy cases?

e) If the requirement is limited to mediation, should completion of another form of dispute resolution lead to an exemption from the requirement to attempt mediation?

These are matters of detail to be worked on and on which we have no strong views. And about which there could be evaluated (not necessarily of academic rigour) pilots. The test would be ‘functional equivalence’ We would also like to see discussion and evaluation of the possible role of Arbitration and Collaborative Law. 

Question 16

What is the best means of guarding against parties abusing the pre-court dispute resolution process:

(i) should the court have power to require the parties to explain themselves?

Yes, as it might help courts see whether or not parties are keen to agree a child-centred parenting plan.

(ii) what powers should the court have in order to determine whether a party had made a reasonable attempt to mediate, for example when considering possible orders for costs?

Yes we agree with costs orders, if only as a deterrent.

Question 17

How could a more robust costs order regime discourage parties in court from avoiding reasonable attempts at pre-court or post-application mediation and lengthening proceedings unnecessarily? Should judges continue to have discretion to decide when to make these orders and what specific costs to include?

We support a more robust costs order regime as it is our experience that too many judges are far from that when dealing with unreasonable behaviour, particularly if it results in delay. 

Question 18

Once a case is in the court system, should the court have the power to order parties to make a reasonable attempt at mediation e.g., if circumstances have changed and a previously claimed exemption is no longer relevant? Do you have views on the circumstances in which this should apply?

Yes, though we suspect that in the majority of cases the chances of mediation being successful will have gone before this situation arises. 

Question 19

What do consultees believe the role of court fees should be in supporting the overall objectives of the family justice system? Should parties be required to make a greater contribution to the costs of the court service they access?

We are strongly against an increase in the costs of accessing the court system as this we see this as a deterrent to access to justice. We already see many deterrents in terms of the fear of the court system and its outcome, the cost of necessary legal advice to go to court, without adding extra economic barriers. We believe far greater economies are possible in speeding up and simplifying family court procedures. 

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