Update | Divorce: responses to the Children and Families Bill

The main purposes of the Children and Families Bill were debated at the House of Lords on Tuesday 2 July 2013. The bill takes forward the government's pledge to provide improved services for vulnerable children and to support strong families irrespective of parental circumstances.

Below I highlight the recommendations that have been made by the association Resolution and what suggestions the charity Families Need Fathers ('FNF') (of which I am a trustee) has made for the bill. How the mediation profession is likely to benefit from the bill is also an issue under examination, as well as how mediation can achieve the outcomes that the court cannot always offer.

Key family law and shared parenting measures proposed by the bill include:

? Attendance at a Mediation Information Assessment Meeting (MIAM) as a statutory prerequisite where parents are in dispute before court proceedings are commenced. This will be welcomed by couples who would by their nature want to sit down and collaborate together to work through their problems with the assistance of a mediator but may not be ideal for cases where couples need a lot of legal advice or are intent on taking their matter to court.

? Legal advisers at the Family Court to process uncontested divorces to free up judicial time rather than require a ?judge to consider each and every ?divorce petition.

? Making the law more robust to make sure that children have a relationship with both parents after separation where it is safe and in the best interests of the child. The government believes that this will encourage more parents who are separated to settle their differences away from court and agree care arrangements that include both parents fully.

? Introduce a new 'child arrangement order' to replace 'residence' and 'contact' orders which are set out in section 8 ?of the Children Act 1989. The new form of order will be introduced to make practical arrangements for the upbringing of children.

Resolution released an official response to the draft bill in February 2013. As an organisation with a membership of over 6,500 lawyers, mediators, collaborative practitioners and other family professionals who are committed to a constructive, non-adversarial approach to the resolution of family disputes and family law, Resolution is well placed to comment on how the bill can meet its objectives.

Resolution has recommended improving the bill to renaming MIAMs as 'Assessment and Information Meetings' as the out of court options available to couples are not limited to mediation and include:

? couples reaching their own agreement without solicitors;

? 'collaborative law' where couples instruct their own collaborative lawyer and sign an agreement not to go down the court route; and

? 'arbitration' where the arbitrator can make a decision which can then be drafted into a court order.

?Resolution's leaflet 'Choosing the right process for you' details all of the options available. The group also expressed reservation about the introduction of a legal presumption in favour of shared parenting. They are concerned about how separating parents will understand the measure. It seems to be a valid reservation, as due to the removal of legal aid there is going to be a big increase in litigants in person who will not have access to legal advice and may therefore not understand the measure.

Shared parenting

The charity Families Need Fathers (FNF) has also been active in the progress of the bill. FNF seeks to obtain, for the children, the best possible blend of both parents in the lives of children; enough for children to realise that both parents are fully involved in their lives. FNF believes that the law should provide that parents should be of equal status.

FNF gave evidence at the Family ?Justice Review in March 2011 advocating that the Children Act 1989 should be amended to include a presumption of shared parenting. The panel of the Family Justice Review was appointed to review all of the family justice system in England and Wales and consider all parts of the system from court decisions on childcare to disagreements over contact for children when parents separate.

The terms 'contact' and 'residence' from private family law cases was to be removed to take away the 'winner takes all' approach to parenting arrangements in which the 'contact' parent is merely a visitor in the child's day to day life, rather than a fully involved parent.

The group considers that a presumption of shared parenting is the best-suited option to meet the government's objectives for family law, and that it fleshes out, rather than competes with, the paramountcy principle that the child's welfare is paramount. Its recommendations were therefore that:

? shared parenting does not mean an equal split of time;

? the child's welfare, through the 'paramountcy' principle overrides everything; and

? parents should have a substantial involvement in all aspects of the ?child's life.

?FNF's recommendation that the terms 'contact' and 'residence' to be removed is likely to take place.

The next stage of the Children and Families Bill will be the Committee stage, a line by line examination of the bill which will begin on the 9 October 2013. If the bill is passed it will come into effect in England and Wales in 2014.

More work for mediators?

National Family Mediation found that 83 per cent of people go to a lawyer first when they decide to separate. It will be interesting if this percentage continues if the bill becomes law. With legal aid now removed for most family law matters since April 2013 and the bill requiring MIAMs before proceedings are issued, it is likely that mediators will become filters for the courts. This is no bad idea as mediation is cheaper, quicker and provides long term solutions which are more likely to be respected, and preferable to long protracted court proceedings.

However, mediators cannot provide ?legal advice, so parents will still need to seek legal advice before, during and after the mediation process. Family solicitors still remain integral to reaching a sustainable mediation agreement by enabling the parties to understand the legal context in which their differences are being settled.

Ultimately, with one of its main purposes being to encourage separating parents to settle their differences away from court, it seems inevitable that the bill favours mediators in the long run, especially when the other key purposes of the bill are already common outcomes in mediation.

Examples of how mediation can achieve outcomes that the court cannot offer are:

? The court does not really provide a forum for parents to decide how to tell their children that a separation is taking place, but mediation facilitates this.

? The court will not be present to ensure the moving children from one household to two households will work. Mediation allows for dialogue to take place and for the parents to discuss what items need to be duplicated or taken for the child at the other household.

? Court orders will not consider the change in parents' daily lives that require flexibility and compromise which mediation encourages. If a contact session is missed a judge is not going to want to see the matter go straight to court for enforcement. Mediation gives couples flexibility to explore why contact did not happen and a forum to disucss when the contact can be rescheduled.

? Mediation can devote time to discussing the introduction of new partners to children, which religion to follow if the parents want the child to follow different faiths, and which future school should ?be selected.

? Mediation allows the separation to be resolved at a pace that suits everyone as the children aspect is only one element. There may also be divorce and financial issues to resolve too. It is important to remember a court application is likely to take 6-8 weeks to be listed. In this time it is in many cases possible to resolve all issues using mediation.

? Children can also be part of the ?mediation process if the mediator is trained to mediate and both parents agree to this. The children can put forward their wishes and feelings which can help to shape a more collaborative outcome for the family. Experience proves that children have even come up with very practical outcomes that neither of the parents had considered.

? For parents who cannot bear to be in the same room there is also the option for the mediation to take place by way of 'shuttle mediation' where the parents sit in separate rooms and the mediator goes from room to room to see if an agreement can be reached. This is an obviously a lot slower, but can still be an effective way to reach an agreement outside of court.

?Cynics may argue that the bill is a politically motivated vehicle devised to ease the burden on the family court and save money for the Treasury. Family solicitors will also rightly be concerned about yet another potential reduction in their caseload, but the government's continued drive towards alternative dispute resolution it to be commended.

With a lot of children growing up with separated parents, the proposed family law changes that assist co-parenting is a welcome step.