On April 22, the family justice system had a major reboot to make it more streamlined and efficient. Many of the changes are concerned with how the courts that make up the system are re-organised and re-designated.

But there is one very important change that is it worthy of more widespread comment. It is now compulsory for anyone planning to divorce  to attend a mediation information and assessment meeting (called a MIAM) before they may apply to take disputes over children or finances, including property and pensions, to court.

For many working in the family justice system, the requirement to meet a mediator to discuss other options before being allowed to go to court cannot come soon enough. Since legal aid was largely withdrawn from family lawyers a year ago, the family courts have seen an explosion in the number of people representing themselves.

Data secured under the Freedom of Information Act reveals that in November and December 2013 over half (52%) of all parties attending court proceedings about child matters were unrepresented. This is unprecedented. Moreover, the same data reveals that between April and December 2013, family courts across the UK had to deal with a third more unrepresented parties, compared to same period in 2012.

This is causing delays for all court users, as someone who is not properly represented is entitled to receive additional help from the judge for which there is not adequate court time available. It means delays for resolving cases relating to child contact and residence, as well as financial matters.

But will the siren call from government to “mediate, not litigate” actually work?

Unless the public is better informed about its benefits, I have my doubts. Mediation is effective because it is a voluntary process which enables parties to stay in control of some of the most important decisions about their family’s life. Despite mediation being available in the UK for almost 40 years, that message is not reaching those who need to hear it most.  It is a message which many lawyers were – and are – prepared to spread.  Yet, the withdrawal of public funding for legal advice for family and divorce matters, means that many people are no longer consulting solicitors, and are unaware that there is still public funding available for mediation.

Mediation is not a soft option.  At a time of separation, emotions can run high and for some, the prospect of trying to tackle difficult issues with the person causing them pain is too much, even if a mediator is there to keep the conversation on an even keel.  Mediation is not a substitute for legal advice: it is complementary to it.  This is difficult for some couples to accept, particularly if they expect that mediation will mean that legal fees can be cut out altogether.

Suffice to say mediation can be a difficult sell. Despite the government retaining legal aid for mediation and promoting it hard, the number of mediations in the West Yorkshire area between April and December 2013 fell by over 40% year-on-year.

As a lawyer and a mediator, this concerns me. Crowded courts and underemployed mediators are symptomatic of the urgent need for family law services to be more affordable. And for me, that is all about lawyers and mediators working in tandem to keep people out of court at a price most people can afford.

Fiona Kendall, a partner at Jones Myers, is a founding member of the Lawyer-Supported Mediation network www.lawyersupportedmediation.com

If you have any queries about the new legislation and how it will affect you then please call us 0113 246 0055, leave us a comment below or drop us an e-mail.

You can follow us on Twitter @helpwithdivorce

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Kate Banerjee, head of our children’s department, answers key questions about this critical aspect of the new legislation which aims to ensure that both parents are involved in their child’s upbringing.

What’s prompted the new law? 

The Government is keen to encourage divorcing couples to be less confrontational and to avoid going to court.  The new legislation is more focussed on the child’s best interests and on empowering both parents. It is designed to promote joint responsibility about where their child will live, when the child will see the other parent – and how often.

How will the new legislation affect children of divorcing parents?

Child Arrangement Orders will be less prescriptive than the current system in which judges can issue residency and contact orders setting out which parent the child will live with and how much contact the other parent will have with the child. In theory this change should mean that both parents are involved in the upbringing of their offspring, making joint decisions on the time that the child will spend with each parent.

How will these Child Arrangements Orders ensure that both parents are involved in their child’s upbringing?

As a family lawyer dedicated to children’s matters including contact and residence disputes, I am still working through the finer points of the new legislation. However, the idea is that parents will be more involved in the decision-making process.  They will be encouraged and supported to agree on what is best for their child, rather than a judge imposing an order for where a child should live, and with whom.

What process do parents need to follow under the new development?

Child Arrangement Orders are one element of the new Children and Families Bill.  As my colleague David McHardy outlined in a previous blog, this includes the introduction of a single family court and a compulsory Mediation Information and Assessment Meeting (MIAM).

This means that both parents will be required to undertake a MIAM. This is a meeting lasting about 45 minutes with a trained mediator to see whether mediation will be suitable for them before they can go to court to sort out matters relating to their children.  Experienced mediators, such as my colleague Fiona Kendall, will be in the new single family court, to support couples and provide a MIAM.

What if parents can’t agree on what’s best for their children?  

Following a MIAM some couples may find mediation useful to help them agree on where their child will live and how frequently and for what duration the other parent will see the child. In other cases, there will be parents who can’t agree – and this may be for a variety of reasons, including unreasonable behaviour, real antipathy towards each other or even abuse.

In my view even with these new laws in place, there will be occasions where a judge will still have to rule on where the child should live – but the process and final orders may not be as clearly defined as the current residency and contact orders.

What do you see as the benefits of this imminent milestone?

I welcome Child Arrangement Orders as a way of promoting greater collaboration between parents to help them to agree on the child’s best interests without undergoing a traumatic court process. It is understandably much better for a child if parents can set aside their own differences and not use a residency or contact order as a stick for one parent to punish the other.  Also, I have witnessed parents, often fathers, feeling deprived because they don’t spend enough time with their children and are prevented from being equally involved in the upbringing of their children post separation.

Conversely what challenges do you envisage it will bring?      

There is a possibility that court intervention will be the ‘elephant in the room’ because, in my experience, there are some parents who have no alternative but to go to court.  No one embarks on the court process lightly with regard to their children – they do so because they need to. People will continue to think and behave in the same way and new legislation won’t change that.

The importance of educating couples and parents is vital in helping them to understand what this new legal language means – and to know what to tell their children with regard to where they will live.  With a residency order it was made clear by a court where a child should live – from April 22 it will be vaguer.  With parents who are in conflict and can’t agree on arrangements, some children may feel in limbo and ask ‘where is my home?’, ‘where will I live?’.

In the countdown to the Children and Families Bill our family law experts will be examining the key issues and addressing some of the significant changes.  We will be updating you on developments via our blog.

If you have any questions about Child Arrangement Orders and the Children and Families Bill please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.

You can follow us on Twitter @helpwithdivorce

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Major legislation that will overhaul the family court system and have far reaching implications for divorcing couples has been given Royal Assent and will become law on April 22 this year.

The Children and Families Bill brings in a major changes designed to focus on the needs and care of children, to streamline divorce and family law cases – and to discourage couples from embarking on confrontational court room battles.

David McHardy, consultant solicitor at Jones Myers, is a family mediator, family court Deputy District Judge and former national chair of Resolution. He answers key questions about the new law and how the changes will affect separating and divorcing couples.

What key changes will the Bill introduce?

• Streamlining the court system and creating one single Family Court to replace the current three-tiered system of magistrates, county and high courts
• Making it compulsory for couples to attend a mediation information and assessment meeting (called a MIAM) before they are allowed to take disputes over children or finances to court. It is intended that both parties attend a session, which will last about 45 minutes
• The introduction of Child Arrangements Orders to ensure that both parents are involved in their child’s upbringing.

What do you see as the three biggest benefits of the new legislation?

• MIAMs seek to encourage couples to avoid traumatic court battles and to consider alternative options including mediation. As well as speeding up the divorce process – which can be as long as 18 months through a court – mediation still qualifies for some Legal Aid funding, unlike most other areas of family law
• The Child Arrangements Orders may help prevent polarising parents’ opinion about where children will live and how often they see a mother or father. The order is designed to meet the best interests of the child, rather than what a parent wants
• A Single Family Court should ensure more streamlined procedures.

What are the challenges or concerns about the new law?

• The NSPCC is concerned that Child Arrangements Orders could confuse parents, who may believe that the shared parenting aspect of the law means a 50/50 split in time with their child or children – it doesn’t. The charity also points out that the new law will not end parents’ stand-offs about who brings up their children
• The new court structure will take some time to ‘bed in’ as magistrates, county and high courts merge into one single and central family court. It is important that there is enough funding combined with good planning and organisation to ensure a smooth transition – and that we have enough judges and courts available
• Access to mediators is patchy throughout the country – for example, I am the only Resolution MIAMs trained mediator in a five mile radius in my area of Essex so I am concerned how quickly couples can meet a mediator. Also some people may be able to avoid a MIAM completely as the legislation includes a ‘get out’ clause from the meeting if they can’t find a mediator in their area within a certain timeframe.

What should the priorities be ahead of April 22?

• To avoid chaos and confusion – and to ensure that people understand the new system – we need a comprehensive information campaign with clear signposting by third parties e.g. Citizens Advice. Easy to digest, practical online campaigns are required to help inform and educate couples
• Family lawyers, judges, court staff and social workers will have to adjust quickly to different ways of working. How they do this will impact on how the general public understands the new system.

In the countdown to the Children’s and Families Bill becoming law our team of experts will be examining specific aspects of the new legislation and looking at the possible effects on children and parents affected by divorce.

If you have any questions about the Children’s and Families Bill please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.

You can follow us on Twitter @helpwithdivorce

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