Twas the night before Christmas: child contact arrangements over the festive period

Before the Christmas break and with ‘switch on’ Christmas lights events abound, inevitably the family practitioner turns their mind to the inevitable pre-Christmas turmoil involving disputed child arrangements for the Christmas season.

The president of the Family Division, Sir Andrew MacFarlane, has implored family practitioners not to make applications to court where they can be avoided, which should be most cases.  

The process ‘is unsuitable for my client’ was always the cry of many litigators, not keen to hand their client to the uncertain world of alternative dispute resolution (ADR) where they would have no control over the outcome and were generally nervous of the process. But a change has to take place if the provision of justice overall to separating parents is to be maintained.

The last decade has seen a rise in out of court methods of dispute resolution, many specifically suited to those couples who are in high conflict and as a consequence find it difficult to agree on anything, even matters involving those who should be the most important people in their lives – their children. 

Children arbitration

The Children Arbitration Scheme commenced in 2016 with then president of the Family Division, Sir Robert Mumby, providing a similar request to the present incumbent. Hybrid mediation, specifically designed to provide a safe environment for couples who might otherwise approach the process of mediation with trepidation, has grown in magnitude over the last three years.  So, why is it child arbitration remains still so underused as a resource and courts up and down the country are log-jammed with parents, both represented and acting in person, who turn to the judiciary to make ‘diary decisions’ on behalf of children whose parents ought to be capable to find another method to resolve the issues which exist between them?

Who knows how many children will be condemned to Christmas day spent in a car on the motorway, the obligation to eat Christmas lunch twice or totally uncertain where they will be spending what should be one of the most special occasions in their early life because not only are their parents unable to agree, but recourse to the current court system is unlikely to provide any form of assistance ahead of the Christmas break.

So, why do we find ourselves in this invidious position? Perhaps the most obvious reason is the delay occasioned by an underfunded and overstretched court service will inevitably suit the parent who wishes to maintain the status quo or who perceives themselves to be more in control of arrangements for the children.

Although the Mediation Information and Assessment meeting has become more rigorous and is intended to discuss all out of court options, not simply mediation, it is difficult for the most diligent accredited mediator to persuade both parents to engage in some form of out of court dispute resolution if one is determined not to do so.  The process remains voluntary and it is clear there are no sanctions likely to be imposed on a parent who demonstrates belligerence.  Sadly, the only people who suffer in these circumstances are the children.

As family practitioners we have an obligation to act on the instructions received from our client and in their best interests.  If our client resolutely refuses to engage in any form of dispute resolution, save for the court process, it may be impossible to persuade them otherwise. 

There does however remain an inaccurate perception among the public at large: it is the court alone which will provide ‘justice’. For the reasons why the soaps fail to highlight dispute resolution methods such as mediation (i.e. the court appears far more glamorous and to have greater ‘clout’), many separating parents have no real understanding of the alternatives available. 

Somehow, there needs to be a sea change to educate those poised to issue a Form C100 that there is something much better available and were the court only utilised for those cases where quite genuinely there is absolutely no alternative, the system would become a far more streamlined resource, better able to facilitate an outcome for that very small group of people. 

We all know the implementation of an adjudicated order can be difficult. How do you enforce an imposed child arrangements plan where one parent resolutely refuses to abide by that which has been imposed?  Many parents incorrectly assume an order made by the court can be enforced by the police.  Of course, this is incorrect.  If some form of enforcement is required through the court, the inevitable delay is likely to mean the moment is lost and the contact arrangement in dispute has long passed.

Experience shows parents are more likely to adhere to arrangements which they are able to construct together.  A child arrangements plan, created by a mediator who is nimble of thought and imaginative with creative options is something which can be reviewed in the future via the same method.  It is far more difficult to deviate from a plan when you have had an integral part in its creation. 

Further, the message given to children their parents have been able to reach agreement, albeit perhaps with the assistance of highly trained professionals, is so much better than the message conveyed by the fact their parents were so unable to focus upon that which was in their best interests that a nameless and faceless judge had to make a decision in their place.

So, what are these options available and how do they work?

The skill for the practitioner is to convince a parent who sees themselves as being deprived from proper time with their children as a consequence of separation to remember where a relationship has broken down, inevitably, the children will have two homes. Contact is the right of the child and it falls to their separated parents to endeavour to construct a routine which enables the children to enjoy the best possible relationship with both their mother and their father. Such exercise should not be confused with an arithmetical calculation. Although most contact schedules follow a rotating 14-day pattern, this does not mean a division of those days needs to be undertaken with mathematical precision.

Mediation

Mediation is probably the best known out of court dispute resolution method. Mistakenly, it is assumed this is only suitable for couples who are broadly in agreement. This is actually far from the case. Mediation can work well for even the most hostile of parents. For those who are at a particularly high level of conflict, the hybrid process is perhaps preferred. Lawyers are able to support their clients within the mediation process, whether classic or hybrid. The hybrid model enables the mediator to hold confidences, which can be particularly helpful in assisting a mediation where either or both parents wish to share behaviours demonstrated by the other which are causing agreement to be difficult. The mediator’s role is to encourage both parents to construct an outcome which places their children at the centre and encourages them to put their own issues to one side. It is not unreasonable to expect the one common ground between separating parents is they would like to do what is best for their children.

Arbitration

If agreement is simply impossible or a small point (where to eat Christmas lunch) involves a binary decision, arbitration is both quick and cost-effective. It is not correct that arbitration is more expensive than the court process. There is no court fee to pay. Although you pay the arbitrator, the reduction in legal cost as a consequence of swift resolution is significant. Arbitration can be dealt with both on paper and in person and can be set up very quickly. In fact, if your clients do have a dispute over Christmas arrangements, arbitration is the best way to get them resolved.

Over the last three years, our lives have changed beyond recognition. Out of court dispute resolution is undoubtedly gaining momentum. We need to listen to the words of the president and do everything possible to educate and inform the public (almost) anything but family court is the right way to make arrangements for your children.

Karin Walker is a family lawyer at KGW Family Law kgwfamilylaw.com