When parents cannot look to the Judges for solutions

19 October 2020

When should parents be looking elsewhere and not to Judges when they cannot agree upon arrangements for their children after separation and divorce?

And what options are available?

Very recently, a Judge in Bristol was asked to decide at which junction on the M4 motorway a child should be handed over from one parent to another.

Whilst this might appear to be extraordinary, it was not that long that a High Court Judge in London was asked to make a similar decision about which platform at Clapham Junction the children should be collected by one parent from the other.

In an anonymised Judgement, His Honour Judge Wildblood QC made it abundantly clear that there are times when parents cannot expect Judges to make decisions for them.

Criticising what he called "unnecessary and wasteful litigation" and inappropriate use of limited Court resources, he went on to make it clear that "the Judges (in the Family Courts) have an unprecedented amount of work. We wish to provide members of the public with a legal service that they deserve and need. However, if our lists are clogged up with unnecessary high conflict litigation we will not be able to do so."

He was giving a very clear warning that applications which Judges consider are unnecessary were likely to receive short shrift and possibly be thrown out.

At the same time, he was indicating that parents who do bring such applications may find that they are paying not only their own legal costs but those of the other parent as well.

These comments are not in the least surprising.

Even before the immense problems caused by Covid-19, the Family Courts were struggling to cope with ever increasing case loads and diminishing resources.

Applying to Court should always be seen as a last resort and when everything else has failed or is not appropriate.

There are other ways of trying to resolve issues where parents cannot agree and one of those is mediation.

Mediation is confidential, voluntary and impartial.

At all stages, parents in mediation are in control of the process.

The process is far cheaper than going to Court and far quicker.

Graham Coy, a partner in the Family department at Wilsons, is a very experienced family mediator who has achieved senior mediator status with the Family Mediator's Association. He is more than happy to provide more information about the mediation process and the services offered by Wilsons.

Those include "co-mediation", which is undertaken by two mediators, one from a family law background and one from a therapeutic background, such as a psychologist, therapist, or counsellor.

The second way of trying to resolve issues without going to Court is through what is known as collaboration. Graham is also an experienced collaborative practitioner.

Similar to mediation in some respects, collaborative practice consists of a series of meetings between the parents and their lawyers, sometimes assisted by a family consultant, who again is from a therapeutic background and is able to offer help and assistance in dealing with the emotional aspects of family breakdown and separation. Emotions can quite often be very strong and conflictual and divert attention away from the most important issue, namely what is in the best interests of the children concerned.

Both mediation and collaborations can take place "face to face" or remotely by video link.

If you woud like to discuss any of the issues raised in this article please contact Graham or use the enquiry form below.

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