Agreeing Parenting Arrangements

November 18, 2019

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Agreeing parenting arrangements when you separate can be a complex business. Some couples just can’t pin down the arrangements for parenting and they  need a plan for going forward, one that is:

  • Clear
  • Adopted and agreed [ie: with consequences if it is not kept to]
  • And that does not cost tens of thousands of pounds to put in place.

The choice is likely to be between:

  • A relatively quick process (mediation) that facilitates parents’ decision-making that might result in an agreement to set up binding arrangements; and
  • And a series of options that can deliver binding outcomes but which are much slower and are likely to involve greater cost.

 So here is the procedural round up:

 Court process

No agreement required: engagement can be required and an outcome can be imposed regardless of buy in/agreement.

There is only one system that delivers a set of binding outcomes without agreement and that is a court application, which is a process

  1. Taking roughly 3-8 months
  2. Perhaps involving fees of £10-£30k each (where each side is represented)
  3. Where the court must gather such information as enables it to identify what is in the child’s best interests by answering the questions posed by the welfare checklist; and
  4. This will usually require the voice of the child to be heard, which may well involve a meeting with the child and a report being written by an appropriate professional.

It is worth bearing in mind that pressures on court lists arising from increased workloads and reduced resources may well mean delays, feeling rushed on the day and sometimes adjourned hearing dates).

Arbitration

Agreement required to enter the arbitration process but the outcome can be imposed.

Arbitration is a process that generates a determination which is:

  1. Binding on the parties, to the extent of
  2. Being highly likely to be converted by a court into an order
  • Which order is in turn enforceable.

The arbitral scheme depends upon the parties’ agreement to the extent of buying in to the process, after that they are, in effect, bound by the outcome that the process delivers.

BUT

  • This still does not put arbitration in the happy position of being ‘a job of a couple of hours’ professional time’
  • This is because the arbitrator is obliged to apply the law and the law requires that the best interests of the child is identified by evidence answering the questions on the welfare checklist.
  •  So
    1. There will still need to be evidence
    2. To include the child’s voice

Mediation

Agreement required to enter the process and to generate an outcome

The right mediator will be skilled, trained and experienced in child development and family systems, as well as being an effective manager of conflict and helping to resolve difficult situations.

  • They will help the clients flex their co-operative/ agreement-making muscle rather than their litigation muscle;
  • They will often help the parties to generate an overall agreement;
  • But if agreement is not secured then usually the process stops and parties must resort to one of the other alternatives … generally the progress in mediation cannot be communicated to the court or to the arbitrator.

Med 2 Arb:  (mediation that migrates into arbitration if needed).

Here agreement is needed to adopt the scheme and reach agreements in mediation … but the safety net of arbitration will generate closure if all is not agreed in mediation.

The mediator achieves what progress they can … if an overall agreement is not possible, then they hand the final resolution to a specialist child arbitrator.  The parties may agree what fixed points from the mediation to adopt which is why this is called the “last brick in the arch” arbitration … the arbitrator’s job is limited to fixing the points that could not be agreed.  The process is limited and so can be much faster.

Parenting co-ordination

Agreement required to adopt the scheme – an ongoing contract running for an agreed period – support is provided by a professional who provides information, promotes agreement but ultimately can impose arrangements within an agreed scope.

The parenting co-ordinator makes themselves available to provide ongoing assistance and resources, so might for example be recommending https://www.ourfamilywizard.co.uk/ to help promote better cooperation between the parties.  They will provide information to help broker agreements; where this fails they might mediate but ultimately will have authority to direct day to day detailed arrangements.

To be clear

Some of these systems have been in relatively recent development and have no long history of prior usage. They may work but there is no-one who can boast many child mediations or long experience of parenting co-ordination.

What now?

It is difficult for two parents to know at the outset what they want … much will depend upon the particular circumstances, the issues and the challenges of the situation in which the family finds itself.

What is likely to be needed is a preliminary meeting with an appropriate professional or professionals so that the options can be explored and the best option (or often perhaps simply the least problematic) can be identified for adoption.

At Family Law in Partnership we have professionals trained in each of these options and so are able to work with you to identify the best way forward. For further information on how we can help you, contact any of our top London divorce and family lawyers at T: 020 7420 5000 or E: hello@flip.co.uk