Family solicitors have warned that government plans to divert private law disputes over children away from the courts and towards mediation may not lead to child-focused outcomes.

One of the options being considered by the government’s family justice review is to make mediation compulsory in all appropriate private law family cases dealing with relationship breakdown, including disputes over contact and residence arrangements. However, this would not include disputes involving domestic violence or where there were child safety concerns.

Figures from the Ministry of Justice show that in 2009 there were 137,480 children involved in private law applications, an increase of 14% on the previous year.

Legal aid minister Jonathan Djanogly has spoken out several times about the benefits of mediation, which he says can provide a quicker, cheaper, less stressful outcome, and allow parties to communicate directly rather than through solicitors or across a courtroom.

Jenny Beck, head of the family team at London firm TV Edwards, said: ‘Mediation is a voluntary process through which parties can try to reach agreement in relation to arrangements for children. While it is hoped that the adults present focus on prioritising children, I am aware of cases where this sadly doesn’t happen.’

She said the emphasis of the court is different, as courts must consider as paramount the best interests of children, having regard to the factors outlined in the Children Act.

Beck said: ‘If parents can together reach a child-centred solution, then mediation is far preferable to court, but if they cannot, there needs to be state intervention through the courts.’

Law Society chief executive Des Hudson stressed the important role played by solicitors in providing advice and helping to resolve such disputes. ‘[Solicitors] help parties make decisions which are practical and in the interests of children – this is particularly so when there is an imbalance of power between partners or where emotions are high,’ he said.

But Suzanne Kingston, head of the family department at London firm Dawsons, said: ‘If the mediator is good, they should reflect to the parties what a court is likely to do and consider, and ensure the children’s views are not ignored.’

The benefits of mediation, she said, are that the parties are more likely to preserve their relationship, it forms a good basis for co-parenting, it is cheaper, and can deliver more creative solutions.

  • In a written ministerial statement this week, Djanogly confirmed that the government will wait until the outcome of the family justice review before deciding whether to extend media reporting rights in family cases. Proposals from the review are expected to be published next spring.