Barristers facing “unrealistic” expectations in private family law

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Holt: Barristers extremely skilled at negotiating with parties

Barristers working on private family law cases are facing “unrealistic” expectations to broker agreements between warring parents, two lawyer academics have argued.

They called for an additional ‘resolution hearing’ to be introduced into cases involving children, so judges could give “their thoughts on the likely outcome” to encourage agreements before the final hearing.

Kim Holt, based at Trinity Chambers in Newcastle and solicitor Callum Thomson, respectively a professor and assistant professor at Northumbria Law School, wrote an autoethnography – a research approach grounded in personal experience – reflecting on 18 months at the family Bar.

In an article for the Journal of Social Welfare and Family Law, the pair said private law proceedings were seen as potentially fraught situations with parents too “entrenched in their own protracted dispute” to prioritise the needs of their children.

“It was also acknowledged that this was an area of practice whereby parents would complain, and the expectations placed upon advocates to broker effective agreement were time-consuming and often unrealistic.

“Barristers talked about the frustration of working within this deeply disputed area of family law, where they were required to broker more effective relationships between the parties, as opposed to public law children’s cases, which were more procedurally driven and where contact with parents was more prescribed – the battleground in these cases was between parents and the local authority, which they felt was a more legitimate dispute, rather than between former partners.”

The academics said important decisions about child arrangements were “often made following parental separation when emotions are heightened and the ability to mediate or achieve agreement is reduced”.

It was “not unusual” for private law proceedings to remain ongoing for well over two years, with the parties locked in disputes.

The lawyers said that while the state may “incentivise” alternative forms of dispute resolution, this did not work for all parents, “and in a context of poverty and austerity for many recipients of welfare benefits, the tensions within families are heightened, resulting in a greater degree of hostility that cannot be managed by alternative forms of dispute resolution”.

The problem was aggravated by the lack of enforceability of parenting plans and memorandums of agreement arising from mediation.

Family law barristers were “extremely skilled at negotiating with parties, including litigants in person, and the court, to ensure that the child remains the focus in every case”.

In the light of those skills, the authors proposed that “an additional, but distinct and specific, resolution hearing be introduced into the child arrangements programme”, similar to a financial dispute resolution hearing in financial remedy proceedings.

This would allow judges to provide “their thoughts on the likely outcome with a view to agreement being reached without the need for a resource intensive and emotionally exhaustive final hearing”.

The resolution hearings, similar to the piloted settlement conferences in Liverpool, would not only use the negotiating skills of legal representatives, but manage the expectations of litigants in person and promote “robust case management”.

The academics added: “A carefully negotiated outcome with judicial input/recommendations may reduce repeat court applications.

“This recommendation to improve procedure may, along with parity in funding for public against private cases, also lead to an increase in the number of barristers taking instructions in private law children’s proceedings, thereby reducing the competition for the more procedure-driven public law cases.”