On the 23 March 2023, the Ministry of Justice (MoJ) announced a consultation on its plans to support earlier resolution of private family law arrangements. ACSO will respond to the consultation and would welcome comments from its members.
The MoJ is concerned with the rising number of private family court applications. There were 56,754 Child Arrangement Orders (CAO) made in 2021, a 7 per cent increase compared to 2011. Of more concern is that as of September 2022 it has been taking 45 weeks for private family orders to be completed, compared to 26 weeks in 2015. There are understandable concerns as to how this is impacting children.
To combat these rises, the MoJ is proposing to make mediation mandatory before applying to court for a CAO. There will be financial support for those who go to mediation, replacing the existing pilot voucher schemes. The MoJ is also seeking to impose costs orders on parents who do not make a ‘reasonable attempt’ to mediate. There will be exemptions to the need to mediate, notably where there are concerns relating to domestic abuse or child protection.
The MoJ’s commitment to ADR is welcome, however there are issues with aspects of the proposals to consider, such as:
- Can mediation services can cope with increased demand? Further to this, what timetable can parents expect if they go through mediation and then court? There is no benefit to children in reducing the time taken to complete the court process if there is a lengthy mediation process beforehand replacing it.
- Where there is no realistic prospect of mediation between parents due to an irretrievable relationship breakdown. What advantages are there to forcing couples to attend a certain number of sessions or wait a certain amount of time, as the consultation suggests?
- If at a Mediation Information Assessment Meeting (MIAM), there is little or no prospect of successful mediation, why can this not be an exemption to the requirement to mediate? This would prevents wasted sessions and speed up the process, reducing the impact on children.
- What will be considered a ‘reasonable attempt’ to mediate? What is trivial in some relationships may be of genuine importance in others.
- Further, in the emotional landscape of family law, the use of the word ‘reasonable’ could be inflammatory. There will be situations where both parents will claim to be ‘acting reasonably’. This could heighten conflict between parents, increasing any negative impact on their children.
- If a definition of ‘reasonable attempt’ to mediate is created, how will the courts impose costs orders? If there is an imbalance in the relationship, such as a financial imbalance, then how will the courts take this into account when deciding costs?
In short, the practicalities of enforcing mediation in private family law needs serious consideration. According to the MoJ, currently only 33% of people currently attend its required MIAM. The MoJ is in talks with the Family Procedure Rule Committee about tightening MIAM exemptions. A focus instead on increasing MIAM attendance could create more opportunities to signpost parents to mediation and other forms of family ADR. The MoJ might then achieve its aims without the complexities mandatory mediation raises.