The Ministry of Justice has launched a Consultation into ‘supporting earlier resolution of private family law arrangements’, this being potentially done through mandatory mediation for separating couples. The consultation is open now and closes on 15 June 2023.

The Ministry of Justice Press Release states:

“the move aims to protect children from the damaging impact of bitter courtroom battles millions in further financial support to families as voucher scheme extended.

Thousands of children could be protected from witnessing their parents thrash out family disputes through the courts, following plans to mandate mediation for separating families announced today (23 March 2023).

In a major shake-up to the family justice system, proposals will see mediation become mandatory in all suitable low-level family court cases excluding those which include allegations or a history of domestic violence. This will mean separating couples have to attempt to agree their child custody and financial arrangements through a qualified mediator with court action being a last resort.

It is expected the move could help up to 19,000 separating families resolve their issues away from the courtroom, while also reducing backlogs, easing pressures on the family courts and ensuring the justice system can focus on the families it most needs to protect.

In the meantime, the government’s Family Mediation Voucher Scheme will be extended until April 2025 backed by an additional £15 million in funding. The scheme provides separating couples with vouchers worth up to £500 to help them solve disputes through mediation and has so far supported over 15,300 families.

Making mediation compulsory will allow the family courts to better prioritise and provide protection for the most serious cases with safeguarding concerns where it is not an option, such as domestic abuse and child safety. It is estimated that 36,000 vulnerable families each year will benefit from faster hearings and quicker resolutions as a result.”

Within the Press Release it is noted that:

“The overhaul could also introduce a new power for judges to order parents to make a reasonable attempt to mediate with possible financial penalties if they act unreasonably and harm a child’s wellbeing by prolonging court proceedings.

The voucher scheme has highlighted the benefit it can have on separating couples and their children. An analysis of the first 7,200 users of the scheme shows 69% of participants have reached whole or partial agreements away from court.

Currently administered by the Family Mediation Council, extending funding takes the total package of support provided by the government through the scheme to £23.6 million.

Estimates suggest 1 in 4 families who have child arrangements settled by judges have been to court before in the past 3 years. Increased use of mediation should lead to more agreeable resolutions for families, saving taxpayer money in the long term…”

Chair of the Family Mediation Council, John Taylor, said:

‘Family mediation can play a really positive role in producing better outcomes for separating families, and in reducing the burden on courts. This consultation shows that Ministers recognise its value in helping separating couples make parenting and financial arrangements without the stress and delays involved in going to court.

It builds on the government’s successful £500 voucher scheme, which is encouraging separating couples to consider family mediation to resolve their disputes. The next few weeks will help shine further light on a process that has the potential to help many thousands more shape the futures of all their family members.

To better support children the proposals would extend the use of co-parenting programmes across the country by making them compulsory before court. Currently families are often referred to these programmes by judges during court proceedings.

These courses encourage parents to take steps for themselves and develop agreements without court intervention, making sure parents are putting their child’s needs first when separating. A pilot study found that around 78% of parents who attend both co-parenting programmes and mediation sessions took steps to withdraw their court cases.’

Chief Executive of the Children and Family Court Advisory Support Service (Cafcass), Jacky Tiotto, said:

‘Cafcass strongly welcomes the focus on supporting more parents to agree how they will care for their children and spend time together without the need to make an application to the family court when they are separating.

We work with in excess of 145,000 children every year and we see the harm to which children are exposed in long adversarial court proceedings. Programmes that encourage parents to consider together what is safe and in the best interests of their children help to keep the focus on what children want and need as they grow up.’

Responding to the proposal, Sam Townend KC, Vice Chair of the Bar, said:

“The Bar Council welcomes the consultation announcement and the opportunity it provides to focus on how to address the outstanding case backlogs in the family justice system. The additional money to support mediation is welcome and we will consider the issue of making mediation mandatory. Provision for mediation without allowing for prior legal advice is unlikely to be generally successful and may, in cases where there is a real discrepancy in resources, be detrimental. We look forward to considering the consultation and responding.”

Resolution however urged caution and highlighted the importance of legal representation with Chair, Juliet Harvey stating:

“We welcome anything that can help families avoid court where it’s possible, safe and appropriate for them to do so. Mediation will help many to do this and can be a very effective method of resolving disputes. But it is not right for everyone, and works best when it is done voluntarily – forcing parents to choose a route that may not be suitable for them is not the answer. It may leave them without a lasting solution and could mean they end up needing more help and taking up more court time further down the line.

It is far better to help couples make informed choices to find the route that gives them the best chance of reaching constructive, lasting outcomes. By providing separating couples with information on those routes and access to early legal advice, they are better equipped to make choices about important issues like family finances and what arrangements are made for children.

… Ten years since legal aid was removed for the majority of family work, mediation numbers for legal aid cases have plummeted to about half the level they were before the cuts, demonstrating the importance of legal advice in guiding couples into mediation. At the same time, the proportion of cases in the family courts where neither party had legal representation has rocketed from 13% in 2013 to 39% last year.

At the same time, demand on the family courts has never been higher, and families are facing massive delays – the most recent figures show it is taking almost a year on average to determine arrangements for children, with contested financial matters taking nearly two years.

Since 2020, Resolution has been working with Advicenow to provide affordable legal advice to those who would otherwise have gone on to represent themselves and navigate their way through overburdened and creaking family courts. Findings from the evaluation of the Affordable Advice service showed:

50% of users said they would not have otherwise sought advice.

82% of users said they would use the solicitor again for help with future family law problems.

A high proportion of users said it helped them feel more confident (90%), less stressed (82%), and able to better make their case (82%).

Every user who had secured outcomes said they were satisfied with the outcome of their case and the advice and support they had received – with one deciding not to proceed with their divorce as a result of the advice their solicitor had given them…”

Lucy Hadley, Head of Policy at Women’s Aid also urged caution stating:

“Too often, we hear that the family courts’ chronic misunderstanding and minimising of domestic abuse is the reason why survivors don’t feel confident to disclose abuse in the first place. Survivors frequently fear they will be accused of parental alienation – a tactic perpetrators often use to accuse women of attempting to drive an emotional wedge between them and their children – if they raise domestic abuse.

This lack of disclosure means the proposed exclusion of domestic abuse cases from mediation will not always work, and we fear that women will be re-traumatised by mediation with their perpetrators.

We already hear from women who have experienced abuse and are pushed down the mediation route – despite the fact they are experiencing post-separation abuse and control. If mediators don’t have a thorough understanding of domestic abuse – or even know abuse is a factor in a case – these processes will ignore unequal power dynamics, exacerbating the abuse women experience and putting them at further risk.

We urgently need clarity on how the Ministry of Justice will ensure that all domestic abuse survivors will be kept safe, and allegations of abuse will be properly investigated through fact finding hearings.”

The Ministry of Justice Press Release can be found here,

Details of the consultation can be found here.

The Bar Council response can be accessed here, that of Resolution here, and that of Women’s Aid here.

News Editor- Mark Chaloner, Barrister, 42 Bedford Row

27/3/23