Separating couples should “try almost anything” before going to court

McFarlane: You can separate smarter

Separating couples should “try almost anything” before turning to the courts, the president of the Family Division has said, arguing that there has “got to be a better way” to resolve child disputes in particular.

Sir Andrew McFarlane said that “far too many families” simply turned to the court rather than seeking “less harmful, swifter, cheaper and potentially more enduring ways of resolving their disputes”.

Delivering the Worcestershire High Sheriff’s Lecture 2022, Sir Andrew said the Family Court in England and Wales currently had a backlog of over 80,000 disputes involving the care of children.

“The backlog in each of the 42 court centres that deal with these cases is significant and unwelcome delays are inevitable. On average it is currently taking some 44 weeks to resolve a private law children application.”

The cuts in legal aid meant it was frequently the case that both parents appeared as litigants in person, the pressure of which “in such emotionally charged proceedings is not to be underestimated”.

Sir Andrew said there has “got to be a better way” for separated parents to be supported and enabled to resolve disputes about the future care of their child without embarking on court proceedings.

He said that “rather than waiting for fresh resources or government intervention, there is much that a parent in this situation can do for themselves to avoid going to court”.

Referring to the book by the solicitor and mediator Jo Sullivan, (Almost) Anything But Family Court, published by the support group Only Mums and Dads, Sir Andrew outlined a dozen options for avoiding court.

All of them could “neatly be encapsulated in a phrase that I have picked up from Australia, from where you can find a suitably straight-talking video under the title: ‘You can separate smarter’.”

On DIY and ‘kitchen table’ agreements, he said there were “now a good number of self-help resources online or in print and, for those that can, an amicable settlement is worth not only the legal fees that it may save, but is also valuable for the comparative absence of bile and ill-will”.

An alternative was mediation, hybrid or lawyer-assisted mediation, where lawyers were present for some or all of the mediation, and child-inclusive mediation, where the mediator met the child separately, and collaborative law.

Another option was arbitration or arbitration with mediation, where the arbitrator directs the parties to arbitrate on a particular issue.

Further options were online services to help in the completion of court forms, or a ‘round table’ meeting of lawyers to discuss settlement.

The other options were early neutral evaluation by a “respected expert lawyer”, calling in a private financial dispute resolution judge or the ‘one couple, one lawyer’ approach increasingly being offered by family lawyers in the wake of the Divorce, Dissolution and Separation Act 2020, which allowed couples to make a joint application to end their relationship.

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