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Home / News and Insights / Insights / Warring couples face penalties for clogging up family courts

This was a recent headline in The Sunday Times, which may well have been met with mixed reaction. The article was based on plans Dominic Raab, the Justice Secretary, is drawing up to introduce ‘incentives and disincentives’ to ‘spare children the trauma of seeing their parents fight it out in court’. He believes that mediation should be the default option and parents thought to be unnecessarily clogging up the courts should face financial penalties.

The rationale and motivation behind such plans is well placed. Sadly many families do end up in the court system in respect of children cases. Often the emotional toll this has on everyone involved, particularly the children who can suffer with unnecessary anxiety, is not fully appreciated at the outset. Furthermore, the nature of court proceedings means that parents tend to become more polarised in their views as opposed to making compromises that are in the children’s best interests.

For many families there is a better forum to help them resolve the disagreements they have as to where the children are to live and how much time they should spend with each parent after a relationship breakdown. One such forum is mediation, where a neutral third party is there to facilitate discussions. Often the involvement of a specialist third party such as a parenting co-ordinator can be invaluable. They are often pivotal in assisting the parties communicate better and exploring what their concerns may be and what the other parent could do to help alleviate these.

However, with the withdrawal of legal aid, many parents no longer have the benefit of taking advice from a solicitor as to the options available. In particular, parents often do not appreciate that once they have a court order setting out for example how much time the children are to spend with each of them, there is no one there at the end to ensure the arrangements are adhered to. Flexibility is usually needed where for example a child is ill, or where one parent would like to switch a weekend around so they can take the children to a wedding or other special event.

An order often only deals with the particular circumstances at the time it is made. Often the arrangements need to change when a child reaches key developmental stages, such as starting nursery, school, or being able to express their own views as to what arrangements they would like.

It is therefore usually best for the parents to agree a framework for the child arrangements which can be adapted to best meet the child’s needs and this can be achieve through the mediation process.

Dominic Raab’s approach is far from unexpected; it follows on from a recent government-backed voucher scheme which offered couples £500 towards the costs of mediation. It is also in line with the court’s ‘no order principle’ that the court will only make an order in respect of children where it deems it necessary.

Another important consequence of encouraging parents to use mediation where it is suitable to do so, is that the court system will be free to deal with those cases where judicial intervention is required. It is essential that the courts are open for those cases where there are domestic abuse or safeguarding issues.

It is now a case of waiting to see what actually transpires.

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