The family courts have been on the brink of crisis for a while. With over 54,000 new private law children cases a year and a court system reaching breaking point, is it time to make ADR mandatory?
Working groups were established in 2018 to tackle the question of how to expeditiously deal with the ever-increasing volume of court cases involving children. Then the pandemic hit. Despite the efforts of everyone in the legal field to ‘keep calm and carry on’, further backlogs inevitably developed. Currently, the Child and Family Court Advisory and Support Service (Cafcass) manage a 13% higher caseload compared to March 2020, with over 54,000 new private law children applications issued in the last year alone.
I recently had a Children Act hearing adjourned on 19 September due to the Queen’s funeral and because of the existing backlogs, we are now unable to get before a Judge until January 2023. The family justice system remains under intense pressure, and children are often the most disadvantaged by these long delays.
With the courts under such pressure, is it time to make ADR in children cases compulsory? This is a topic that was recently considered by the President of the Family Division (Sir Andrew McFarlane) and some of the key discussion points are highlighted below.
Alternative dispute resolution (ADR) is a means of trying to resolve disputes out of court. It is often quicker, less acrimonious, and substantially cheaper than contested court proceedings. ADR is currently not mandatory, but could making it be the way forward?
The previous government’s commitment to family mediation was clear when they invested a further £5.4 million in June in the Mediation Voucher scheme – the investment now totals £8.7million.
In England, before a court application can be issued under the Children Act, unless an exemption applies the applicant must attend a Mediation Information Assessment Meeting (MIAM). This is an introductory meeting where a mediator provides information about the mediation process. However, there is no obligation on the parties to engage in mediation after this initial meeting, and as the recent case of K v K  highlights, it is often too easy for applicants to bypass the MIAM requirement and claim an exemption, resulting in yet another case ending up in a heavily strained court system.
Sir Andrew suggested if there was, in future, to be any compulsion, perhaps an ‘IAM’ (rather than a MIAM) would be appropriate – this entails ‘a meeting to which both parents should be required to attend …. with a generalist professional who can impart information [‘I’], guidance and advice [‘A’] more generally about parenting after separation, or, as it may be, resolution of financial issues. The advice would include basic neutral advice about the law and the legal structure.”
Lessons from Australia?
A new law in Australia means that since September 2021, parties must (subject to certain exemptions) engage in a process of Family Dispute Resolution before a court application can be filed – either through lawyer-led negotiations, collaborative practice, conciliation, mediation, or arbitration. The emphasis is on helping parents to ‘separate smarter’ and to see the court as a last resort. It will be interesting to see how these changes impact the Australian family courts and what lessons we can take away.
With the court system under so much pressure, now is the time to change the way that separating parents can be supported in resolving disputes regarding their children. In Australian terms, it’s time to ‘separate smarter’.
"It is widely acknowledged that real harm can be visited upon a child who is the subject of inter-parental dispute, and particularly if that involves sustained court proceedings. The overall approach that is needed is to provide information and support for parents so that they may move away from a ‘justice’ based response to parental fallout towards cooperative separated parenting, where child welfare (rather than playing out parental conflict) is the central and overriding factor". - Sir Andrew McFarlane, President of the Family Division, September 2022