How Will the Children and Families Bill Affect the Family Court and Mediation?

The Children and Families Bill is due to be enacted next year and will have implications on a number of aspects to do with children’s welfare in the UK, including adoption, social care, special education, and the family court process. Part of these changes involve making mediation a necessary step in the process of divorce, but will these adaptations really make the system work more smoothly, or are they simply a method of reducing the amount of cases that go to court?

Family courts are used to determine the best situation for a child, whether that’s social care, adoption or deciding on custody arrangements when a couple separates. Parts of the new law have been set out to allow parents to avoid court completely so that they can make quicker agreements when children are involved, and when the bill comes into effect next year it may become compulsory for couples applying to court to first meet with a qualified mediator, or mediation-trained solicitor.

Mediation is an alternative to court that works well with both financial and children’s cases where both parties are committed to finding a solution that is best for their family. Mediation is often extremely helpful in cases where children are involved as it provides an ongoing method for parents to iron out issues as they arise. It can also assist both parents in understanding the perspective of their child/ren and each other.

The suggestion that mediation might develop to be a compulsory part of the court process is an interesting idea in theory, but one that could come up against certain difficulties in practice – for one, pushing mediation onto couples for whom it will not necessarily be useful. At the moment the court cannot order parties into mediation and this is because mediation is based on trust and good faith. The parties involved are required to sign ‘An Agreement to Mediate’ to show they are committed to working towards a mutually beneficial resolution. It seems a little contradictory, therefore, to be ordering couples to go to mediation if they are not in agreement!

At the moment it is not compulsory to attend a mediation information meeting (MIAM) but this is still often recommended for couples negotiating a separation when there are children involved. In our opinion, making it compulsory to attend a meeting is not necessarily a bad idea, although almost everyone who sees a solicitor will have had mediation explained to them anyway, so should have had the chance to make that decision themselves. Yes, mediation can be an extremely positive step towards a divorce, but it’s not for everyone. If you and your partner simply cannot bear to be in the same room, then mediation sessions may not provide much development in your case besides providing you with another place to argue… Enforcing mediation on couples may in fact end up as a method of delaying proceedings and increasing the number of cases settled out of court – again, all right for some, but in our opinion, each case should really be considered individually and in relation to the circumstances and each party involved.

For now, at least, mediation is a choice, and just one option for couples going through relationship difficulties. When you consult a divorce solicitor at Frances Lindsay & Co we will outline the different methods and processes available to you for your separation, and help you to determine which one is right for your family, your situation, and your budget. If you’d like to talk about how mediation may be of benefit to you, please get in touch with us by emailing info@franceslindsay.co.uk, calling 01628 634667, or visiting our website at www.franceslindsay.co.uk.