The government has shelved controversial plans to make mediation compulsory for separating parents in England and Wales so as to prevent bitter disputes from reaching the family courts.
The proposals were intended to reduce the large volume of private law cases, which on average take nearly a year to reach a final court order. During this time children can be left in limbo, not knowing their future living and contact arrangements with their parents.
But the plans, drawn up during Dominic Rabb’s tenure as justice secretary, attracted criticism from lawyers, domestic abuse charities and family dispute experts when put out to consultation last March.
Concerns were raised that compulsory mediation could place vulnerable people at further risk and that forced participation would “undermine the essence of mediation”.
The Ministry of Justice (MoJ) said on Friday that the law would not be changed to mandate mediation, and measures would instead be introduced to better protect children from lengthy legal disputes. These include early legal advice being offered to separating families, improved training for mediators and the extension of a pilot that offers more support to the abuse victims and their children who do end up in court.
Lucy Hadley, head of policy at Women’s Aid, said: “[We] warned that proposals to make mediation mandatory in family courts would put the safety of survivors of domestic abuse at risk so we are pleased the government has listened to the sector over the dangerous policy.”
Abuse does not end when the relationship ends and separation is an intensely dangerous time for women and children. For many survivors, domestic abuse escalates within the family courts and compulsory mediation would have given perpetrators increased power and tools to abuse.”
The government says it is working with the Family Mediation Council to improve domestic abuse training for mediators and help them develop a screening tool to better identify victims early on.
And as of December 2023, a government-funded mediation voucher scheme has helped more than 24,600 families to resolve their issues outside of court. Lord chancellor and justice secretary Alex Chalk KC said: “There is no one-size-fits-all approach for separating families, which is why we’re ensuring people have access to early legal advice and mediation to resolve disputes as early as possible.
“These reforms will help spare thousands of children the long-term harm of lengthy combative courtroom conflict.”
John Taylor, chair of the Family Mediation Council, said: “Too many separating couples currently see the default position of taking their dispute to a family court. Research shows that prolonged parental conflict has a long-term impact on the health and wellbeing of children.”
The proposals were initially intended to address the long delays and growing backlog of private law cases.
The latest available MoJ data, covering July to September 2023, shows private cases involving decisions around children’s living arrangements and who they have contact with were taking an average of 45 weeks to reach a conclusion.
The latest plans from ministers include an extension of what are known as “pathfinder courts”, which have been trialling an improved way to resolve private law children cases where there are allegations of domestic abuse. The pilot has been running in north Wales and Dorset since March 2022, with the aim of improved and early information sharing between agencies such as the police, the courts and local authorities.
The model aims to amplify the voice of the child at each stage of the process, ensuring they are listened to and their feelings are factored into decisions that affect their futures.
Last week Baroness Carr, the lady chief justice, said pathfinder courts are due to be rolled out to Birmingham and Cardiff in spring of this year. She told the House of Commons justice select committee that the initiative was about “front-loading” the private law experience by involving the Children and Family Court Advisory and Support Service (Cafcass) from the beginning of a case.
With regards to public family law cases – which have a statutory time limit of 26 weeks but take an average of about 49 – Carr said, “there is a huge effort going on to reduce the times involved”. She said the judiciary “would love to roll [the pathfinder trials] out to every family court in the country”, but added that would require resources and government funding.
Women’s Aid said the extension of the pathfinder pilot is a positive step forward, but that wider changes, including robust training on domestic abuse for all judges, magistrates and professionals in the family courts, remain urgently needed.
- Justice system