Marilyn Stowe: Revolution in the family justice system

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THIS week the new single Family Court came into existence. It will deal with all family proceedings, with only a few matters being reserved for the High Court.

The President of the Family Division, Sir James Munby, has said, “these are the largest reforms of the family justice system any of us have seen or will see in our professional lifetimes”. Taken as a whole they amount to a revolution.

Part of the changes cover how public law children’s cases, such as care proceedings, should be managed, and how the courts should deal with disputes between parents over the arrangements for their children. The enactment of the Children and Families Act 2014 covers both public and private children’s proceedings.

A further provision still to come into force has been added to the Children Act 1989 which states that the court should presume that the involvement of both parents within the child’s life is in the best interest of the child, unless this is disproved. This involvement may be direct or indirect and does not necessarily mean the division of the child’s time between the parents.

Also new is the statutory requirement to attend a Mediation Information and Assessment Meeting (MIAM) before making an application to the court in relation to family proceedings.

This forms part of the Government’s attempts to speed up dispute resolution and reduce the number of proceedings which find their way to court.

Something has to be done to reduce our overcrowded courts clogged up by self representing parties who know little of the law or procedure. The over population of the courts system by Litigants in Person, which I suspect is due not only to the removal of Legal Aid but the impact on pockets of the recession too, has led to the erosion of lawyers from the courts. Courts need lawyers to function, remove them and the courts get clogged up with people who’ve got no idea what they’re doing yet are seeking an outcome one way or the other, as is their right.

It may be that a MIAM is considered inappropriate if it falls under one of the exemptions – these being: domestic violence, child protection, urgency, or previous MIAM attendance. There are a number of further exemptions, including the absence of a family mediator within 15 miles of the prospective applicant’s home. If an exemption is used the court has the right to make enquiries into whether it is valid. In addition, at every stage in the proceedings the court must consider whether an alternative form of dispute resolution is more appropriate. The court can adjourn proceedings if it considers non-court dispute resolution is appropriate.

The received wisdom appears to be that if the Ministry of Justice now obliges everyone to attend a MIAM (Mediation Information and Assessment Meeting) before going to court then separating couples will learn about alternative out of court methods of dispute resolution and stay out of court.

An immediate downside is that the respondents can’t be forced to attend because there is no mechanism to compel them. There is no application before the court. It could prove to be an additional bureaucratic waste of money to an anxious would-be litigant.

Compulsory attendance at a MIAM isn’t new but even when it has been publicly funded separating couples have still favoured attendance in court, even if they have not had access to legal representation. Now, with greater awareness of out of court dispute resolution alternatives given that MIAMS now have statutory force, perhaps the figures may change.

Why has mediation historically failed to catch on? I am not against mediation – I trained as a mediator 20 years ago. I’m also an arbitrator and we have a full range of out of court dispute alternatives in our practice including the ability to conduct a MIAM at all our offices, but mediation is complementary to the right to go to law, not an alternative. It has its downsides: it is not compulsory, it requires consensus between the parties and it may fail without an outcome. But if it works it will encourage a better relationship.

My view is that it is considered as a possibility far too soon. Parties aren’t in the right zone to mediate calmly rationally and sensibly. But leave it until the case is under way, once there has been an exchange of positions, documentation and minds are focused, there is an acceptance of the new reality and that’s the right point to expect resolution, as I’ve seen on many occasions.