On the 23rd March 2023, the Government introduced plans to change the way in which co-parents approach making arrangements for their children outside of Court. As of 15th June 2023, the Government’s independent consultation will announce whether it intends to impose fines against parents who do not attend compulsory mediation for child arrangements. Given that there has been a significant and prolonged backlog for the Courts in dealing with child arrangements, it is unsurprising that there was a push from the Government for change. It is the view of the Courts that any delay in its determinations for child arrangements is likely to prejudice the welfare of children, which is a principle established by Section 1(2) of the Children Act 1989. This stems from the guiding principle that the welfare of the child must take precedence over all other issues, contained in Section 1(1) of the same Act. The Government predicts that this change “could help up to 19,000 separating families resolve their issues away from the courtroom”.
One could therefore be persuaded at face value that this change is a step in the right direction for collaborative approaches to co-parenting. However, it could also be argued this change will adversely affect parents who see no realistic benefit to mediation due to an unfortunate and irreversible breakdown in their relationship. Such a breakdown may be detrimental to the co-parenting relationship which can often result in vast differences of opinions between parents as to what is best for their children. It is therefore important for parents to be aware of the benefits of compulsory mediation and the practical drawbacks of the same, which the independent consultation will no doubt consider in their report.
What will be the immediate impact for parents?
The most obvious positive impact of compulsory mediation is the reduction of applications for child arrangements, therefore reducing the backlog in the Courts. This is the primary intended outcome of this change and is foreseeable in theory. The more people that can come to a resolution outside of the Court arena, the less applications that will need to be made. This is especially important to facilitate agreements for things such as interim contact arrangements; where parents decide temporary arrangements for their children whilst more permanent solutions are the subject of Court proceedings. For example, be it figuring out school holidays or certain arrangements for shared contact whilst one parent is moving to a more permanent location, it is important that temporary arrangements can be made swiftly. The Court process can sometimes take months in situations which are not urgent and so time and cost efficiency are therefore one of the inherent benefits of mediation. Should that therefore mean that mediation must be compulsory?
Mediation is not always the best course of action for some, especially those who feel that they are not suited to negotiating. Although the Mediator will try their best to enable constructive negotiations, this is not always a guarantee of an outcome which pleases everyone. Some parents feel strongly about one course of action being in the best interests of their children, but may not be able to articulate their feelings and may feel better represented by solicitors and barristers. It may therefore cause some parents to worry that compulsory mediation could lead to a one-sided outcome. However, it must be remembered by those who feel vulnerable to such situations that there is no obligation to agree at mediation. Furthermore, parents can always make their feelings known to the Mediator who should have experience handling sessions with fairness, empathy and sensitivity.
One other potential drawback of compulsory mediation is when both parties feel as though mediation will be ineffective, as both parties were never realistically going to ‘budge’ on their positions. It therefore seems nonsensical to force parties to incur the time, stress and costs of going to mediation when they were always going to end up making an application to the Court, leading to further costs. The Government aims to tackle this issue by offering a £500 voucher to all families going through mediation in respect of their child arrangements. However, some familiar may claim that this voucher does not go far enough to support families in complex situations where more than one or two sessions are needed, as the £500 voucher will only support around one to two sessions, depending on the fees of the Mediator the parents choose.
An optimistic perspective would highlight the fact that parents might be more amenable to agreement than they first thought possible, once they have the chance to sit down and talk things through with a Mediator present, as opposed to making assumptions about what the other parent will or will not do. The essence of collaborative co-parenting is effective communication and mediation offers parents the chance to do this before filing applications at Court. Going to Court should often be treated as the last resort for parents who cannot agree what is in the best interests of their children and through compulsory mediation, some parents may surprise themselves with what can be achieved. This is what the new change seeks to provide at its core, in the hope that parents will not see mediation as a simple ‘tick-box’ exercise, but rather as a tool through which to achieve the best outcome for their children by making sure that both voices of the parents are heard. The Government highlighted that a pilot study found that “78% of parents who attend both co-parenting programmes and mediation sessions took steps to withdraw their court cases” and CAFCASS have endorsed the new change, so this change seems to be a positive step for most parents. However, for the minority that remain, the question still arises as to whether compulsory mediation will simply be an expensive sidetrack from their case.
Under this new change, some parents will still be exempt from attending compulsory mediation. For example, if one or both parents have safeguarding concerns for the welfare of their child or if there have been historical allegations of abuse between parents throughout their relationship, mediation will not be necessary. The Court will review the evidence presented in respect of the allegations raised and will determine whether mediation is necessary in a case. This does present a challenge for parents who feel that mediation will be ineffective but do not necessarily meet the threshold, in the Court’s view, to be exempt from attending mediation.
These are just some of the concerns that the Government’s independent consultation will have to tackle in its determination of this new policy. Whatever the outcome of the report, parents should always try to work collaboratively to agree on contact arrangements for their children in the first instance. However, when this is not possible, the new policy may come as a welcome change to some, but a costly and stress-inducing obligation for others.
There are resources available for parents to try to work more collaboratively with each other for their children. Programmes such as ‘Planning Together For Children’ in Wales are endorsed by the Courts and are focused on developing parents’ communication strategies with each other to ensure more constructive and child-focused decisions. These courses are not compulsory, nor are they direct ‘parenting’ courses. Rather, their aim is to help parents communicate more effectively with one another so that Court applications and compulsory mediation can be avoided altogether.
To view the Government’s statement introducing the change, please click here: https://www.gov.uk/government/news/plans-to-protect-children-under-new-mediation-reforms.
We also have an article which dives into the current issues around Court backlogs which can be found here: https://wendyhopkins.co.uk/court-backlogs-how-they-are-impacting-clients-and-what-can-be-done-to-help/.
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Author: Owen Day
Published: 13.06.23