Weekly Family Law Update May 28, 2024

Government shelves plans for compulsory mediation

The Government has shelved plans for the introduction of compulsory mediation in family cases, at least for the time being.

The news was contained in the Government’s response to a consultation it held last year on resolving private family disputes earlier through family mediation.

The consultation sought views on several issues, including three key proposals:

Firstly, supporting parents/carers to resolve their children and financial arrangements without court involvement, for example through pre-court parenting programmes;

Secondly, a proposal for a system of compulsory mediation before an application can be submitted to the court for a private family law dispute concerning children or financial remedy; and

Thirdly, how people would be held accountable for not making reasonable attempts to resolve their disputes via mediation or otherwise outside of court, for example by the court making costs orders against them.

But responders to the consultation raised concerns that making mediation compulsory could result in victims of domestic abuse having to attend mediation when it was not suitable or safe for them. In the light of these concerns the Government has decided not to introduce a compulsory mediation requirement “at this time”.

Instead, the Government says it will bolster mediation, for example by improving training for mediators and by continuing to support the Mediation Voucher Scheme, under which it provides £500 towards the costs of mediation, in eligible cases.

The Government’s response to the consultation also included two other important announcements.

Early legal advice

Many respondents to the consultation considered that the lack of free, publicly funded, family law legal advice was a barrier to early dispute resolution, saying that providing funded access to early legal advice would improve the information available to parents, allowing them to make better informed decisions about their dispute, and potentially leading to improved outcomes for parents and their children.

In response to these concerns the Government has announced the launching of a legal advice pilot, which could include providing families with information on various options for dispute resolution, explaining the court process to them, and providing them with advice on potential solutions to the dispute.

Through the pilot the Government aims to assess the potential benefits of government-funded early legal advice, both in facilitating the earlier resolution of disputes and expediting court-based resolution where required.

The pilot will be launched in specific regions in England and Wales by summer 2024.

More Pathfinder courts

The other announcement related to the current piloting of ‘Pathfinder’ courts.

In February 2022, the Ministry of Justice began piloting a more investigative and less adversarial approach to private law proceedings relating to children in courts in Dorset and North Wales.

Known as Pathfinder courts, the new approach identifies families’ needs earlier and works with both adults and children, as well as external agencies such as local authorities, the police and schools, to understand their circumstances and help them to reach an agreement and/or conclude proceedings without the need for multiple hearings.

A review stage, carried out after an order has been made, aims to ensure that court orders meet the welfare needs of the child and reduce the number of cases that return to court.

The pilot is designed to improve the experience and outcomes for children and parents/carers involved in private law proceedings, and particularly those who may need additional support, such as domestic abuse survivors.

The Government has now announced that the pilot will be extended to South-East Wales and Birmingham in April and June 2024 respectively and then, subject to the findings of an evaluation and decisions at the next Spending Review, it intends to roll out the new approach to all courts in England and Wales.

Commenting upon the announcement Domestic Abuse Commissioner Nicole Jacobs said: 

“The Family Court is critical in keeping child and adult victims safe from abuse. I am delighted that the Pathfinder Court pilots will be extended to two further sites, with a view to national roll-out. These courts take a child-centred approach, supporting victims and embedding an understanding of domestic abuse throughout the proceedings”.