Child Arrangements – to litigate or mediate

As accredited mediators and specialist family solicitors we assist parties through the process of family mediation in cases involving arrangements for the care of children. In other cases we represent clients through the Family Courts.

There has been a big sea change in how the Courts approach issues in relation to children such as where a child should live (formerly known as Custody or Residence) and how often a child should spend time with the other parent (previous known as Contact or Access).

If you are thinking of making an application to Court in relation to your children then (save in exceptional cases) you MUST attend an assessment appointment for family mediation prior to issuing any Court application. If you do not do so then the Court should reject the Court application.

If you attend an assessment appointment but the other party does not attend then as mediators we can sign the Court form to confirm that you have complied. The Court has the power to make a directions order that the other party MUST attend the assessment appointment prior to a further Court hearing.

It is important to know that private children cases (e.g. where children should live, go to school and spend time with each parent) are increasingly being dealt with by lay people i.e Magistrates as opposed to specially trained family Judges. District and Circuit Judges are now dealing with the more difficult cases involving child protection and welfare concerns.

There is a great emphasis on resolving issues through mediation for a number of reasons:-

1)      Mediation can result in successful outcomes in a far more time and cost effective way than going through the Court. Legal aid also remains available for parties who satisfy the eligibility criteria. This means that it is free if you qualify for Legal Aid. Even if you don’t qualify for Legal Aid but the other party does, you will not pay for the assessment appointment and the first joint session;

2)      Through mediation you can discuss matters with the other party in an open way, re-establish a dialogue and move forward as parents as opposed to being positional and speaking through lawyers in a Court room. Mediation is at the heart of the Child Arrangements programme (the new Court process) and the Courts and CAFCASS have to consider mediation at every stage;

 3)      A Court order is a piece of paper with a Court seal on it. Once the process has ended, whilst you can bring enforcement proceedings if the other party doesn’t comply, you need to somehow live with and make the order work. Whilst CAFCASS can sometimes be on hand with the assistance of a monitoring order in exceptional cases, these are few and far between.  Through mediation you can talk through your difficulties and agree ground rules for communication and dialogue which can hopefully assist you to implement the agreement reached within the mediation process.

Court proceedings are necessary in cases where there are serious welfare concerns or child protection issues. In those situations it is important to seek specialist legal advice and support.

If however you are seeking that your child’s voice is heard then this can also be achieved through the family mediation setting. Direct Child Consultation is a process whereby a specially trained family mediator with the requisite qualifications and experience can speak to children as part of the process. Sally Clark is a specially trained Direct Child Consultant with experience of working with children and young people in a variety of settings.

For more information or a confidential initial telephone consultation please contact us at enquiries@consilialegal.co.uk or 0n 0113 357 1315.

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