The Justice Minister, Jonathan Djanogly has recently lambasted parents for using the Courts to decide their children’s future, rather than exercising their own responsibility and making those decisions between themselves.
Whilst Mr Djanogly’s principle concern was the use of L143M of public funds in the last year alone to settle disputes within the Court arena, the same criticism can be levied against “privately paying” parents who do not qualify for state assistance.
Public funding (previously known as legal aid) is only available to those parents who are on extremely low incomes or are in receipt of certain State Benefits and who must also meet merits based criteria. Before an application for public funding is entertained by the Legal Services Commission (which is responsible for legal aid in England and Wales), the parents must demonstrate that they have attempted to settle their dispute through negotiation and, in particular, have considered the use of mediation.
Privately paying clients, however, are not currently subject to the same requirements and as mediation currently remains a voluntary process, they cannot be forced to consider mediation as a means of settling their dispute before an application is made to Court.
Consequently, the Courts are becoming bogged down with applications made by parents who feel unable or simply refuse to communicate with each other and who are, therefore, asking a Judge to make decisions for them as to their children’s future. In many of these cases, the Court will consider it appropriate to refer the parents to a Parenting Information Programme which has been devised by the Children and Family Court Advisory and Support Service (CAFCASS) and is being implemented by Relate. The purpose of the course is to coach parents in putting their children at the forefront of their minds and to learn to communicate with each other with a view to amicably reaching agreement.
Initial indications are that the Parenting Information Programme is extremely effective and assists in resolving disputes at an early stage. Unfortunately, however, this programme is only available to those parents already involved in the Court process.
For some time, practitioners have recognised the need for parents to have access to this type of service at an earlier stage and prior to the issue of any Court proceedings but with mediation remaining a voluntary process, it is too often the case that parents refuse to consider this as a way forward, preferring the option of Court proceedings and, in effect, a complete stranger deciding their children’s future.
There is now a strong indication from Government that privately paying parents will, in the same way as publicly funded parents, be compelled to attend a mediation assessment meeting before an application to Court can be issued. It is anticipated that referrals to mediation will still be subject to the same safe-guarding criteria and that those parents who are the victim of domestic abuse or whose children are considered to be at risk of harm will not be required to attend.
This must be seen as a positive step in encouraging parents to accept responsibility for their children’s welfare and to make decisions together.
This article was written by Dawn Gore, a Paralegal and Certified Family Law Assistant at Family Solicitor Trethowans
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The Family Team at Trethowans, headed up by partner Andrew Mercer provide assistance and representation in all aspects of family related matters. These include pre nuptial, cohabitation and parental responsibility agreements; marriage and separation, cohabitation or civil partnership breakdown. We also assist with the issues of financial provision, arrangements for children and domestic violence.