The Child Arrangements Programme – My response to consultation
See my previous post about The Child Arrangements Programme
Here is a link to the relevant part of the Gov.uk website
To save time, here is a PDF to the plan and a PDF of the procedural flowchart.
My Response to the Consultation on draft Child Arrangements Programme
The Private Family Law Work Group is looking to keep cases out of Court and to encourage parents to resolve their own issues.
The Legal Aid Agency has a significant presence in the Private Family Law Work Group
Although slightly out of remit, the Legal Aid Agency should be asked to urgently review the workings of Help with Mediation
The Legal Aid reforms have failed in encouraging people to mediate because
- Parents want to get advice before they agree to mediate
- Parents often need the value of mediation to be validated by their Solicitor
- On a limited budget, parents would rather pay a Court fee when they know that they will get a hearing, than enter a process, which they are sceptical about. The start point is the other is unreasonable and has no intention of seeking resolution
- This has led to a reduced use of mediation and increase in parents applying to the Court
A simple Solution
Extend Legal Aid help with Family Mediation so that it works as follows;
- It can continue to operate in the current way.
- In addition; if a client wishes to see a Solicitor first, then the help with mediation form can be signed by the client and the Solicitor, and the Solicitor is paid an additional fee [equivalent of Legal Help Level 1] provided the Solicitor also retains evidence on their file to show that they have made a referral to a mediation agency.
- If mediation takes place, the Solicitor will also be able to claim the normal fee under help with family mediation. They will simply need evidence on their file to show that mediation has started (a copy summary or letter from the mediator will suffice)
This solution would be relatively inexpensive and provides for the validation of mediation. Mediation remains entirely voluntary, and this would sit easily with the proposed flowchart.
Or, even, keep the same fees, but allow an assisted person to receive their help with mediation in advance of the mediation process, on the basis that a referral to mediation is made!
The idea of the mediator being the gatekeeper for legal aid for general family issues had a lot to commend it, but the public are not ready, and it has not worked. The above would do better to keep cases from Court in the first place.
If there is domestic abuse or safety issues, then the current legal help/legal aid rules will apply instead.
Dispute Resolution Appointment.
Whilst Judges to seek to assist the parties to reach agreements, often very helpfully assist parties to achieve resolution instead of setting down, the Court can be under time constraints.
Surely there is also a role for the Judge to refuse to set the case down for final hearing until the Judge is satisfied that the parties have exhausted the possibility of achieving a negotiated solution. The Court should adjourn the DRA on the basis that the parties will meet with a mediator to seek to resolve the dispute.
We have had mediation cases after the Court and parties have received a welfare report and the Court has adjourned the case for the parties to mediate. We have achieved success in these circumstances.
Mediation doesn’t simply have to follow the standard family model of mediation (a series of meetings of 1 ½ hours).
There are different models of mediation and many family mediators are trained in the civil model of mediation. Many family mediators will offer shuttle mediation under the family model, which can include the attendance of Solicitors for each party.
If the mediation is on a shuttle basis with solicitors present with their clients (either using the civil or family codes, but in all cases with the time being allowed for the mediation being generally a morning or afternoon (3hours)) then no safety issues should arise. All cases should be able to have a meeting which potentially could resolve the case and avoid a contested hearing.
(I am happy to expand on what I mean if this is unclear)
The Court could adjourn after DRA (in appropriate, possibly most cases) for mediation. The Court would then set the case down only after the Mediator sent a letter in confirming the mediation had not succeeded.
The Court could order that mediation take place within a given time window; say 21 days, so that there could be cost penalties if one side dragged their feet in arranging the meeting.
Setting Down Fee
As further encouragement, there could be an additional Court Fee to be paid in order to secure a Final Hearing date. This could even be structured like say stamp duty or council tax, so that there would be a lower, more notional fee to those eligible for public funding, or not far off means wise, to a mid-level fee, to a significant fee for the genuinely rich. The fee could also be per day of Court time, to encourage parties to focus on what is truly relevant.
Family Solicitor since 1992; Mediator since 1996; Past member of Law Society Family Law Committee; Past Board Member of FMA; Participant in the FAINS research from pre-pilot; Children Panel since 1996, Accredited Mediator and PPC, Resolution Accredited specialist for private law children and domestic abuse.