Could Arbitration Help Avoid The Blame Game?

January 22, 2020

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The welfare checklist does not include “meanness”

A lot of the correspondence we receive when working out parenting arrangements would be enough to send us scurrying back to the text of the Children Act muttering “Mean .. there must be a paragraph which requires the court to take into account whether someone has been mean to someone at the time of the breakdown of the marriage… “

Well we have checked again and it still isn’t there … what it says is this and only this:

1. Welfare of the child.

(1)  When a court determines any question with respect to … (a)the upbringing of a child …the child’s welfare shall be the court’s paramount consideration.

(3) … a court shall have regard in particular to—

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)his physical, emotional and educational needs;

(c)the likely effect on him of any change in his circumstances;

(d)his age, sex, background and any characteristics of his which the court considers relevant;

(e)any harm which he has suffered or is at risk of suffering;

(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

(g)the range of powers available to the court under this Act in the proceedings in question.

 

What is more it says it against a backdrop of the following:

 (2A)A court .. is … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(6)  a parent of the child concerned—

(a)is within this paragraph if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and

(b)is to be treated as being within paragraph (a) unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement.

So it should be pretty clear to anyone, that unless meanness goes

  • To the safety of the child (section 1(6)
  • … or the parent
  • Or is somehow indicative of parenting capacity (s1(3)(f),

Then it really isn’t in the mix …

… and yet parents get stuck into a blame game

And yet the problem persists of parents raising this stuff as the start of a rally over who has been meaner … with the material around how or why an arrangement would better promote the child’s well-being often relegated to somewhere in the background, as if somehow, the process is a Strictly Come Dancing popularity contest where the nicer person picks up the glitter-ball of having their arrangements preferred by a judge at the end of the day (rather than the one who has essentially danced out a better set of arrangements for their kids).

The very opposite is needed

Now don’t get us wrong … we are no fans of meanness.  Ultimately children thrive because at some point (and the sooner the better) the penny drops with each parent that they each need the other to be the best parent they are capable of being.  It is when each then starts to commit energy with kindness and a level of insight and empathy to enlarging that reality that children can start to have the best childhood possible.

We get too that there are the situations of authentic future risk: where an open, positive, trusting arrangement is unlikely to come right and puts the child or the other parent at risk of significant harm.  We are not talking about those situations … but the other sort, where the court becomes a fine-tuned, but hugely expensive and ponderous piece of machinery sorting out essentially relatively minor logistical disagreements or relatively minor questions about allocation.

If shared care is not really in dispute and it is just a question of how care is shared, then it is not really a legal dispute at all, in that

  • Legal principles don’t dictate an answer one way or the other
  • Indeed the outcome is impossible to predict one way or the other by reference to those principles; therefore
  • The risk is the high cost of a litigated process with ultimately unsatisfactory outcomes for one – or perhaps both

These are the sorts of case that the court is increasingly desperate to shed from its over-stacked court-lists to enable it to focus upon the cases that really engage questions of safety and so on.

But those cases-involving-safety aside, clearly anything that enables parents to move on beyond the hurt they have sufferend and to create the least toxic, most positive environment for their children absolutely a positive next step.

Types of help needed

And that conundrum of how each parent can be helped into the positive structuring of parenting arrangements forces us to think about process …

Families might be divided by reference to the sort of input that might be appropriate for them:

  1. Informed: the parents are relatively congruent about what the future holds, but will harvest good information (eg from websites, books or advisors), tapping into the experiences of others and professionals to get their children to the best arrangements they can devise;
  2. Then there is assisted: a more hands-on involvement and help from professionals is needed
    • perhaps an information programme (that engages the parent or parents heavily) or
    • perhaps (at the other end of the continuum) a form of Early Neutral Evaluation (where a lawyer will share the likely outcome of the court case).
    • But most commonly it will involve mediation, where the parties sit with a non-aligned professional to work their way through the issues involved.

In these cases, however, the shaping of the final arrangements remains resolutely in the hands of the parents, not those advising them.

  1. Finally there is imposed arrangements category: here someone in the role of a judge will determine the arrangements that will be made.

Mediation as the default

With the best mediators there is the opportunity of real progress towards a positive end: energy is put into addressing the wounds of separation and the various stings, hurt and venom that made it unavoidable … There is a focus on the imagining of a better future.  More information can be accessed here https://www.familymediationcouncil.org.uk/ or here  https://flip.co.uk/processoption/mediation/

But not everyone gets “home” with mediation.  What happens then?

Well, traditionally, the mediator engages with the parties to consider the downsides of the alternatives, to encourage re-engagement or to help get a plan across the line …

… but if that is not good enough then very often the “MIAM – the mediation information and assessment meeting” certificate is signed off which becomes the passport to the issue of proceedings.

Delays at court

The mediation and MIAM processes do not always seem to be effective in focusing the parents on the tests that we have set out in boxes at the start of this article.  This is what should be the focus in a court case but often parties seem to slip away into their own agenda.  Too often the issue of the proceedings is the starting gun for the historical analysis and to and fro about meanness.

Further, it is SLOW. In a case the other week, the profile was as follows:

  • Sept 3 Issue of proceedings
  • Jan 16 Court date (the first hearing and dispute resolution appointment, or “FHDRA”)
  • Feb 13 Date for filing statements listing out the complaints
  • Mar 5  Likely return date to court for consideration as to what allegations were admitted and whether a Fact-Finding hearing would be needed to decide on the truth of the others, when directions for statements and the preparation of schedules and evidence would be given.
  • Jun 12 Possible fact finding hearing (1 day) of court time, analysing the disputed faults and complaints on each side, to issue a declaration as to what the court would assume actually happened.
  • Jul  Likely period for children to meet court reporting officer with each parent and so on
  • Sept 7 Likely return to court (4th hearing) to see if, following receipt of the report and the Reporting Officer’s recommendations, there could be agreement in the light of all the accumulated information; in default of which:
  • Dec 14 Possible return to court (5th hearing) to determine the applications … followed by
  • A year or so later: Likely start date for the next round of proceedings as the arrangements had all fallen out of date because of changes in the children’s schedule so that a new structure would be required (and our experience is that generally those who needed the court the first time, tend to need it the second time, because they have not managed to build their own problem solving skills to a level to manage agreement over the new set of arrangements).

The Hobbesian unregulated jungle and other problems

What can be toxic for children is that during this court-period, the parenting arrangements may be pretty unregulated … Children may find their parents’ parenting informed by what the parents can harvest for litigation advantage from the arrangements as they unroll, rather than a fair structure to enable the family to get through to the point of judicial determination, with minimum hurt and damage.

What is often toxic for parents is :

  1.  The level of effort and input demanded of them during this process. (The statements don’t write themselves and the court hearings all need attendance); and
  2.   The hard choice:
    • either running the case (with difficulty and lots of research hours) on your own and worrying that you are missing a trick
    • or incurring the sizeable fees of representation.

And of course what is toxic for parents is almost always going to further add to the toxicity for their children because of the way that it impacts on the parents’ ability to provide care.

The characteristics of an alternative

Self evidently an alternative is needed to fix the case that mediation doesn’t solve.

We need that process:

  • to discourage the descent into irrelevant historical analysis
  • to be faster, so as to avoid the unregulated environment for kids
  • to be cheaper than the eye-watering level of costs that deter parents from having representation (a decision that they may come to regret when the out-turn arrives)
  • and which is less demanding in terms of preparations and attendances.

Ideally, it will also address those common challenges at court:

  • avoiding going part-heard (so you wait for a month or two extra for your hearing to complete, because the court runs out of time on the day)
  • ensuring a high-quality specialist judge; and
  • providing continuity: (so that it is one judge all the way through – this is aimed for at court but is not always possible).

There are in this country only two forms of imposed-arrangement process:

  • those provided by the court and
  • children arbitration under the Institute of Family Law Arbitrators scheme.

Parties can elect to step out into arbitration at any time before the court makes its adjudication and the parties can agree what matters the court is going to decide.

Arbitration

Under the arbitration scheme a faster track can be provided through the process …

  • whilst at court we were anticipating a fifteen month process from start to end, involving up to five hearings
  • the arbitrators we contacted in our case were suggesting a first meeting within a couple of weeks and an overall resolution within 4-6 weeks.

Because the process is faster, there is not the opportunity of running up high costs … So, whilst the “judge” [=arbitrator] has to be paid and the court reporting officer becomes the independent social worker, who will also charge for their input, these costs are usually dwarfed by the savings created by avoiding the litigated process.

Continuity is provided and because the professionals are chosen, usually with assistance from professionals experienced in this work, you are likely to benefit from a high-quality level of assistance and decision.

My experience of arbitration is that the arbitrator’s initial grasp of the issues and the parties, means that there is a resolute focus on the welfare checklist (rather than the audit of meanness process that is so often involved at court and which the MIAM and the FHDRA seem to be incapable of stopping).

No alternative will be perfect but given the challenges and difficulties of the court process what we have in arbitration is a really significant step up.  Information about the scheme is available:

Often, the only challenge to adopting it is whether the other party will agree – but if the children’s wellbeing is at the heart of the selection process, the arguments for doing so are pretty compelling aren’t they?

And the case at court?

Well luckily on this occasion, the parents were rescued by their lawyers … a hard day’s to and fro at court,

But none of us should depend on being so lucky each time.

James Pirrie is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost effective approaches to divorce and separation including mediation, arbitration and collaborative law. He helps clients take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. To find out how James can help you in your family law matters, contact James at E: hello@flip.co.uk or T: 020 7420 5000.

Helen Greenfield is a director at Family Law in Partnership Ltd and has been specialising in family law for over 10 years. Helen advises on all matters relating to family breakdown, divorce and cohabitation and has a particular interest in helping those who have been affected by domestic abuse. To find out how Helen can help you in your family law matters, contact Helen at E: hello@flip.co.uk or T: 020 7420 5000.