Posts Tagged ‘family mediation’
Developing policy on Alternative Dispute Resolution
Many people acknowledge that if disputes can be resolved in ways that do not involve a hearing in court, this can be more effective and flexible than litigation. But use of alternative dispute resolution (ADR) has been constrained by the fact that, for it to take place, both parties need to accept that this would be the preferable way forward. There has been a reluctance to requires parties to use ADR.
In July 2021, the Civil Justice Council published an important report in which it argued that it would not be unlawful for the use of ADR to be made mandatory.
In August, 2021, the Ministry of Justice published a Call for Evidence seeking information about the use of ADR to resolve family, business and other civil disputes away from the courts. The paper makes clear that, in a post-Covid world, it is important to rethink some of the ways in which dispute resolution and how they should be changed to improve access to justice, reduce cost, and deliver fairer outcomes.
Experience from a number of other countries suggests that an element of compulsion in the use of ADR is important in achieving broader acceptance of the use of ADR.
It is unlikely that detailed policy initiatives will be announced for some time. But it seems to me that policy makers and the senior judiciary are working together to create a more postitive context within which ADR will become a central feature of the dispute resolution landscape.
The Civil Justice Council’s Report is at https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/.
The Ministry of Justice’s Call for Evidence is at https://www.gov.uk/government/news/views-sought-on-dispute-resolution-vision. Submissions are sought by the end of October 2021.
Family Justice Research
Big changes are in progress in the family justice system. Researchers, both within government and outside, are engaged in a number of research projects designed to examine how the family justice system is working. Indeed, a number of recommendations in the Family Justice Review related to the need to better share relevant research and good practice throughout the family justice system. The government accepted these recommendations and agreed to work with the Family Justice Board to help provide social research evidence to family justice professionals and wider stakeholders.
The Family Justice Research and Analysis team in Ministry of Justice Analytical Services are supporting this through their Family Justice Research Bulletin. The 5th volume of the Bulletin was published in January 2015. The 4th is also available on-line but numbers 1-3 are not. It is planned that further bulletins will be published roughly every six months.
Given the controversies that surround the operation of the family justice system, the undertaking and publication of high quality empirical research is obviously necessary to ensure that the system is working as intented.
One of the principal findings in the present edition is that public knowledge of what is happening to the family justice system is very sketchy; and that government hopes for more use of mediation are still thwarted by a lack of willingness of parties to participate in mediation. There also seems to be a lack of understanding that while legal aid for family matters has been cut back, it is still available for mediation.
Those interested in the research discussed in the bulletin can find full details at https://www.gov.uk/government/publications/family-justice-research-bulletin-5-january-2015
Bulletin 4 is at https://www.gov.uk/government/publications/family-justice-research-bulletin-4-mar-2014
Mediation in Family Disputes
Mediation is the Government’s preferred option for resolving family disputes. The Government has recently announced that, from 3 November 2014, the first mediation meeting will be free to both parties, so long as at least one of the parties to the dispute is in receipt of legal aid.
In addition, from January 1 2015 there will be a third stage in the government’s work to improve mediation and encourage separating couples to use it to resolve disputes. From the beginning of the New Year, the Family Mediation Council (FMC) is introducing a compulsory accreditation scheme and new professional standards which all mediators must work toward. All mediators and those working towards becoming a family mediator will be required to be registered with the FMC. The Ministry of Justice (MOJ) is funding the preparation work and costs of implementing the new standards.
These announcements follow recommendations from the Family Mediation Taskforce.
See https://www.gov.uk/government/news/free-mediation-for-more-separating-couples-begins
The report of the Family Mediation Taskforce report, published in June 2014, can be found by googling Family Mediation Taskforce.
Family Justice: ensuring the voice of the child is heard
Family law places great emphasis on the child. Ensuring that the interests of the child are addressed is central. But how can these issues be addressed if, in the course of proceedings – whether in court or mediation – those taking decisions do not hear directly from the children who are going to be affected by those decisions?
In theory the child’s interests are represented by CAFCASS (the Children and Family Court Advisory and Support Service). But it has been recognised that however well staff in CAFCASS work, they may not always fully understand the child’s perspective. In 2006, CAFCASS established the Family Justice Young People’s Board (FJYPB) – a group of around 40 children and young people who have been through the family justice system or who have an interest in children’s rights and the family courts.
The Board has recently been developing proposals to ensure that the practice and procedure of judges and mediators gives children the opportunity to be heard directly.
In a recent speech to the FJYPB, Simon Hughes, Minister in the Ministry of Justice, announced that the Government would seek to implement proposals for all children over the age of 10 to be heard, both in couirt and in mediations. The precise details of how this will happen still need finalising, but this seems to be a step to which the President of the Family Court, CAFCASS and mediators are committed to.
For more details, see https://www.gov.uk/government/speeches/simon-hughes-speech-at-the-voice-of-the-child-conference.
See also http://www.cafcass.gov.uk/about-cafcass/how-we-are-organised/family-justice-young-peoples-board.aspx
Reforming the Justice system: creation of the Family Court
The long-awaited Family Court opened for business on 22 April 2014.
Following enactment of the Crime and Courts Act 2013, instead of family cases being divided amongst Family Proceedings Courts (as Magistrates’ Courts dealing with family matters are called), county courts and the Family Division of the High Court, there is now a single point of contact for all family matters that need resolution by courts. In practice, the judges that formerly undertook family work will continue to do so, and the buildings used for family cases will be the same. But questions of how matters are to be divided between the different types of judge will be decided by judicial administration on a practical basis. It is specifically provided that certain types of simple cases may be dealt with by magistrates sitting on their own, rather than in panels. Justices’ clerks and their assistants are also given wider powers to assist the judiciary in straightforward cases.
As you will be aware, the Children and Families Act 2014 was given Royal Assent on 13 March and a number of significant family justice reforms will be introduced from 22 April.
The reforms to the family justice system are aimed at improving the way the system functions as a whole. In particular, we want to make sure that the welfare of children is at the centre of decisions, reduce delays in proceedings, and encourage families to use court as a last resort to resolve disputes. We are:
- Placing a requirement on a person to attend a meeting to find out about mediation before they are allowed to make certain applications to the family court, for example, disputes over finances or children arrangements (unless exemptions apply – such as in cases of domestic violence).
- Moving to the use of child arrangements orders (CAOs) in place of ‘residence’ and ‘contact’ orders.
- Streamlining court processes for divorce and dissolution of a civil partnership by removing the requirement for the court to consider the arrangements for children as part of these processes.
- Introducing a 26-week time limit for completing care and supervision cases, to improve the timeliness of finding a permanent placement for children. The court will have the discretion to extend cases by up to eight weeks at a time, should that be necessary to resolve proceedings justly.
- Restricting the use of expert evidence in children (both public and private law) proceedings to that which is necessary to resolve the proceedings justly and requires courts to have regard to the impact of delay on the child when deciding whether to permit expert evidence in children proceedings and whether the court can obtain information from parties already involved;
- Reducing unnecessary administrative work, by removing the need to renew interim care orders and interim supervision orders as frequently, allowing the courts to set interim orders which are in line with the timetable for the case.
The Children and Families Act 2014 is also brought into effect on the same day. This implements the recommendations of the Norgrove Committee on Family Justice. It
- makes attendance at a meeting to find out about mediation a compulsory requirement, before any proceedings before a court can be started (save for exceptional cases, e.g. where there is domestic violence) so separating couples must consider alternatives to court battles when resolving financial matters and arrangements for child contact;
- replaces residence and contact orders with ‘child arrangements orders’ designed to encourage parents to focus on the child’s needs rather than what they see as their own ‘rights’;
- introduces a 26 week time limit for care proceedings to further reduce the excessive delays in these cases and give greater certainty to the children involved (this can be extended by up to 8 weeks if necessary to resolve a case justly);
- streamlines the process of obtaining a divorce or dissolution of a civil partnership;
- restricts the use of expert witnesses in both private and public law children proceedings, requiring the court to consider the impact of delay on the child and whether the information could actually be obtained from parties already before the court.
The impact of cuts to legal aid are that it appears there are many more litigants in person before the courts. It remains to be seen whether, when the changes have bedded down, this remains the case.
For further information see https://www.gov.uk/government/news/family-justice-reforms-to-benefit-children; and https://www.gov.uk/government/news/major-changes-in-family-courts.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 