On 27 June 2023, a number of family justice professionals participated in a roundtable meeting organised by:
Katherine Res Pritchard, Partner at Howard Kennedy.
Katherine practises exclusively in children law, with a great deal of experience in both domestic and international children matters. Her work covers all aspects of private children law, including international and internal relocation, child abduction and surrogacy.
Tara Dunne, Legal Associate at OurFamilyWizard.
Tara presents regularly at family law conferences and seminars across the country, providing training to family law professionals, including Judges, Solicitors, Mediators and Social Workers on OurFamilyWizard’s co parent communication platform.
Full details of attendees and contributors can be found at Section 4.
The purpose of this roundtable was to consider how professionals could better support each other in their roles, and consequently achieve better outcomes for children and their families as they interact with the family justice system From this discussion, the contributors identified several challenges facing the family justice system and the changes required for positive progress.
This document is designed to be a resource for legal professionals, parents and young people navigating the Family Justice System. It is also hoped that this document and the resources signposted will be of assistance to other professionals who provide crucial support for families, including education professionals, GPs and mental health practitioners and professionals.
A list of key resources recommended by contributors is at Section 3.
Section 2 - Issues Facing Families
The contributors identified the following key issues in the family justice system that are currently obstacles to achieving the best outcomes for families :
A Lack of Public Education on Out of Court Dispute Resolution
The President of the Family Division has emphasised that court proceedings should be a last resort for parents and avoided where possible, however, this advice is potentially not being put into practice as much as it could be.
The MIAM (Mediation Information Assessment Meeting) is where the parties have a first meeting with a mediator to explain their situation and the issues to be decided The mediator, in turn, will explain the mediation process and other options for reaching agreements and inform them of whether the process may be suitable for their circumstances.
The MIAM is a great way for parents to be exposed to out of court dispute resolution options the problem is that often an exemption will be claimed This exemption is not then critically assessed in court once proceedings have begun.
Some families will inevitably need to resort to the court process urgently, but others would benefit from alternatives Court should be a last resort, but it is often the first place that separated parents think of. This is down to a lack of public education and information about the other options available to them. Families need to understand what the various professionals involved in the child arrangements process can and cannot do. At the moment, families and the professionals supporting them (including health and educational professionals), do not have sufficient information reaching them early in the process.
Suggestions for future change:
Legal professionals and families need to explore out of court dispute resolution options where appropriate, including :
Collaborative Law/Mutual Legal Advice (as provided by The Divorce Surgery)
Arbitration
Mediation (including Child Inclusive Mediation and Shuttle Mediation)
Parenting Programmes and;
Psychotherapy and Systemic Family Therapy
It needs to be made clear to families that the court is not the only option available and will often cause more emotional and financial stress for the individual going through the process.
It might not always be appropriate at the beginning of a matter to consider out of court dispute resolution methods, but legal professionals should keep these other options in mind. Even during the court process, thought should be given to whether a matter can return to mediation or settle.
The MIAM exemption process should be tightened, and judges should look more critically when an exemption is claimed.
There needs to be better public education for parents going through the child arrangements process, particularly on :
The court and non court options available to resolve their issues;
Where to access information about the private children law process;
The different roles that are involved with, and contribute to, the child arrangements process, such as judges, solicitors, divorce coaches, mediators, arbitrators and therapists.
On a more specific level, Cafcass’ recent animated video directed at children is extremely useful to outline what the process is, and how Cafcass help children involved in the family court (see link in the resources section below). A similar video directed at parents may be useful. This video should :
Outline a concise message on the possible outcomes of the court process
Highlight the emotional difficulty and uncertainty of the court process
Manage expectations with regards to each professional's role, and delays within the system
Outdated Language
Language in family law is archaic and reflects a positional and adversarial approach to children law proceedings, particularly in private law and by both parents and professionals There is still prominent misuse of language such as ‘ and ‘ and parents often misunderstand terms. To address this issue, the Family Law Language Project and The Family Solutions group have pushed for :
Plain language to be used with families
Language to be more accessible to families
Language to be more collaborative between professionals
Suggestions for future change:
Professionals should use plain language with their clients and draft solution focused letters .Moving away from language of parental rights towards that of parental responsibility, allows issues to be approached in a child focused and problem solving way
Always giving thought to whether picking up the phone would obtain a quick answer and/or solution as opposed to writing a letter
Using family names rather than legal labels in court or when speaking to clients; and
Emphasis on building positive futures as opposed to focusing on past accusations
Cafcass’ Capacity
Delays in producing Cafcass reports are caused and exacerbated by :
Overwhelming demand
Recruitment and retention issues
Lack of response from the courts to Cafcass’ letters and applications
Delays in the court notifying Cafcass of a need for a report (in some cases not serving copies of the orders outlining the need for a report for months)
The combination of these factors means that it takes 17 weeks for a report to be written In addition, circumstances can change and worsen while waiting for a report, and this usually cannot be reflected once the report is written If an addendum is allowed, that is going to be a further 17 week delay.
Suggestions for future change:
Where professionals are supporting their clients or the parent during the court process, sending the court order directly to Cafcass (where appropriate) to prevent further delay in the process
Negative mindsets around separation
Narratives around positive co parenting after separation are not shared, even though it is possible and is the experience of many families. Everyone in this process wants the family to move forward in a positive way, but the current approach and media around divorce and separation are negative.
The perception is that you must be positional and tactical in children proceedings, but this does not help the child(ren)’s or the family's outcome It is thought that there is a winner and a loser in these proceedings but usually, whatever the outcome is, there is a huge impact on a child’s mental health and research supports this.
Education around divorce and separation should be the norm and should start at nursery level, but it is seen as a taboo subject by a lot of people If there is a positive message around divorce and separation then there will be a completely different approach to these circumstances by both parents and professionals.
Suggestions for future change:
Professionals should consider an integrated approach, and who else a client or their family may benefit from speaking with for additional legal, financial, or emotional support
Professionals should consider the language they are using with their clients, and parents should consider the language they are using with their co parent Is it positional? Is it aggressive? Is it solutions focused?
There should be inter discipline discussions with individuals, especially in the creative arts sector, to change the negative mindset and promote positivity around divorce and separation
The Voice of the Child Not Being Heard
When a child is subject to a child arrangements order, the child does not have their own time it is usually split between both of their parents So, what happens if the child wants to go on a play date or go to the park with friends after school? Children need to be consulted and considered and it needs to be recognised that their wishes and feelings may change as time goes on which should also be factored in.
Suggestions for future change:
The voice of the child needs to be the focus and implemented in an appropriate way so that all involved are aware of the child's perspective and the adversarial nature of proceedings can be lessened
There is currently a scheme that has returned to the Central Family Court in London where all children over 9 years of age are brought into court. They attend with the parent that they are with on that day and a Cafcass officer will talk to the child in the family centre. This document provides no comment on the scheme but one we wanted to make readers aware of.
Section 3 - Key Resources
For professionals
FJYPB Book In Our Shoes - experiences of young people in their journeys through the family courts
OurFamilyWizard: Co Parent Communication Platform - for divorced or separated families and their professionals, providing a safe and neutral environment whereby key issues about the child can be resolved.
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