Government has moral imperative to fix child court backlogs

According to official court statistics, more than 80,000 children are involved in private family law proceedings in England and Wales. These are proceedings where a court looks to address such crucial issues for a child as where they will live, how much time they will spend with a parent, and even which future school they will attend when their parents have separated. There is a wait of approximately 12 months for a decision to be made through the court in these types of cases. This shows not only the sheer volume of cases being dealt with by a court system that is at breaking point, but also the thousands of children and their families whose lives are being adversely affected and displaced whilst waiting for these decisions to be made.

For many families, court proceedings will inevitably be the only way in which a dispute with regards to a child’s future welfare can be addressed. For many more, however, if proper education and an understanding of alternative means to address these types of disputes, such as mediation, were made more publicly aware to families from the offset, then the most likely outcome would be a decrease in these kinds of disputes being caught up in adversarial court proceedings.

The government introduced a voucher scheme in 2021 to encourage more families to engage in mediation, affording a one-off contribution of up to £500 towards a qualifying family's costs. This was initially in response to Covid-19 to support the recovery of the family courts and encourage more families to consider resolving their disputes outside of court. However, how many families are aware of this scheme and how many understand the enormous benefits associated with mediation? As family lawyers, we seek to educate parents about their options and explore with them the benefit of mediation, but we would welcome an active role from government in the promotion of alternative dispute resolution in family cases.

Public broadcasts have over the years been successful in bringing to public attention matters that deserve due consideration. We have become very used to political broadcasts, but public information broadcasts in the 70s and 80s highlighted the dangers to children of playing with fireworks, crossing roads, or the importance of wearing seatbelts, educating a generation in its day. Government campaigns to promote mediation and emphasise its huge benefits could be pivotal in convincing many to adopt mediation as the most appropriate environment in which to address private law children’s proceedings, rather than within a protracted, adversarial court environment. Social media campaigns and other literature would also be enormously beneficial in educating the public.

Professionals would also welcome a shift in the government promoting the benefits of mediation by encouraging more lawyers to train as mediators using subsidised training packages, which in turn may relieve the burden on an ever-strained court system.

Further consideration should also be given to whether mediation should be compulsory for all private law children matters from the very start unless there are safeguarding concerns i.e., the risk of child abduction, before parties can issue a court application. Presently, parties must declare on a court application they have attempted to attend a MIAMs (Mediation, Information and Assessment Meetings), to assess whether mediation is suitable for them.

While mediation is often unsuitable in cases involving domestic violence, many parents as litigants in person and lawyers alike are completing the court forms from the outset without exploring with professionals whether any alternative means of resolving their dispute may be safe for them and worth attempting first before issuing a court application. In some cases, mediation may still be suitable even when there has been domestic violence present within a relationship.

Most mediators offer remote mediation and so even when a case would not be suitable for parties who are unable to be in the same room, this online platform ensures that safety can remain paramount, and the parties kept separate. A shift towards all first mediation appointments being remote would ensure that the mediator meets both parties from the beginning and can then establish suitability of mediation going forward.

If we are to reduce the number of children in private family law proceedings and relieve the burden on a buckling court system with an active pivot towards families utilising mediation services, the government surely needs to be involved in an active mediation campaign that helps to readily promote the significant benefits that mediation can bring to separating families.

Michael Gregory is a partner and cohabitation law expert at boutique family law firm Lowry Legal