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‘What about me?’ was the title of the report of the Family Solutions Group two years ago in November 2020. It was accompanied by a plaintive picture of a sad young child staring into the distance, wondering what the future held. It contained ground-breaking research and wide-ranging ideas for reform. What has happened to since then and what improvements have been made to help children and parents involved in family breakdown?

The latest figures about private law family cases released by HM Courts and Tribunal Service make for depressing reading. By the end of August 2022 there were 85,706 ’open’, ie unresolved, cases in the court system. Worrying enough, but that does not mark a substantial increase in the number of cases from September 2021, when the number was 83,655.

If we assume the average number of children in each case is just two, that’s over 170,000 children whose lives are in some degree of turmoil at any one time. Worse still is that the average time it takes to resolve cases is over 43 weeks. That is a significant period in any child’s life.

What needs to be done?

We all know that the family justice system in England and Wales is on life-support. We know that from our own professional experience. Judges are pleading with us to help our clients to identify other and often more effective means to achieve a solution.

All of us would like more judges and more courts and far more pleasant facilities when we are at court. A re-introduction of what we used to know as legal aid would help enormously, since fewer parents are now able to access legal advice and representation and see no alternative but to go to court when they are unable to reach agreement upon the arrangements for their children.

Is any of that going to happen?

We can be sure that in the current economic and political environment, the answer is no.

As family lawyers we are members of the family justice system and we need to take responsibility ourselves to identify and implement change in the interests of those we serve, our clients, and in the interests of their children.

In doing so, there is a lot to take into account.

The court process, apart from being protracted, is not a beneficial experience for parents or children. The process encourages contention and animosity. The result can more often than not be long-term emotional and relationship damage.

Many cases do not raise legal issues. Some do, where there is evidence of serious harm being suffered by children, and those cases need court resources so that they are decided as quickly as possible.

Those resources are not best suited to resolving the majority of cases, which are in reality about relationships, relationships breaking down and relationships which need to adapt to new circumstances. The court system and judges are ill-suited to dealing with those.

In 2021, a survey conducted for Resolution found that two-thirds of separated parents said that they lacked help and advice about how to put their children first when they split up. The resources exist to help those parents, Separated Parents Information Programmes, for example.

The President of the Family Division, Sir Andrew McFarlane, referred to a book by Jo O’Sullivan titled ‘(Almost) Anything But Family Court’, in a recent speech and identified 12 options to avoid going to court, including family mediation, collaboration, arbitration, early neutral evaluation and the developing concept of ’one couple, one lawyer. The list is by no means finite. We can promote and develop those options and as a consequence have many more satisfied clients.

The court system can improve without any or certainly major legislative change. Why is it that in the court process one of the last voices to be heard is that of the child, when CAFACSS eventually talk to the child involved and allow them a belated opportunity to say what they have on their mind and feel that someone is at last listening to them? In meditation, by contrast, parents are encouraged to agree that if their son or daughter is ten years old or more, that they are given the chance to talk to a specially trained mediator on their own and given the opportunity to have their voices heard. Why is that not good practice in every case?  There are a significant number of trained and qualified mediators to see children directly.

MIAMs

The reform of mediation information and assessment meetings (MAIMs) is also long overdue. Why should not both parties, and not only the applicant, be required to attend? The scope of a MIAM could also be broadened to include the remaining 12 options identified by the President.

Courts must enforce compliance by not allowing applications to be issued and listed for hearing when a MIAM has not been attended. Sanctions are available, for example costs, and should be enforced. Where an exemption is claimed, it needs to be examined properly.

Conclusion

There is no reason why courts cannot introduce a ’triage’ process, and if that already happens in practice, let us know.

Thought needs to be given to the increasing numbers of fact-finding hearings, especially where there are numerous allegations and counter-allegations about parental behaviour. Are they always appropriate, or is it sometimes a case of ’kicking the can down the road?

How much judicial time and expense to clients could be saved and how much more effective would the process be if far greater use was made of professional risk assessments?

The answer to the question, ’Have children been forgotten?’ is hopefully no, but we could all do a lot better.

Graham Coy is a partner in the Family team at .