Non-Court Routes for Settling Child Arrangement Disputes

A relationship breakdown is never easy, especially where there are children involved.

Why Avoid Court for Child Arrangements?

The courts in England and Wales generally aim to avoid making orders about children unless absolutely necessary. This is because court orders can be rigid and may not account for the ever-changing realities of family life, such as illnesses or unexpected events. Additionally a Court Order is made at a fixed point in time and what may be deemed as being in the child’s best interest when they are 4 years old may not align with what is in their best interest when they are 9 years old.

For these reasons, successful co-parenting - where parents collaborate amicably - is often considered the best approach.

However, disagreements about child arrangements are common whether this be in respect of the time the child spends with each parent, what to do during holidays, or even which school they should attend.

In such cases, professional support can help resolve disputes constructively.

Court Delays and New Emphasis on Non-Court Dispute Resolution (NCDR)

At the time of writing, the Courts are currently experiencing unprecedented levels of delays and backlogs, with many cases taking years to resolve. This makes court proceedings a less attractive option for parents seeking swift outcomes.

As of 29 April 2024, there has been an amendment to the Family Procedure Rules which now places more emphasis than ever for parents to attempt “Non-Court Dispute Resolution” also known as NCDR.

These changes encourage parents to explore alternative routes before and during court proceedings. In fact, courts now have the power to pause ongoing cases if they believe insufficient effort has been made to resolve disputes through NCDR. Failure to engage in these alternatives could lead to delays, increased costs, and even adverse rulings on legal expenses.

This rule change applies to all Court applications- existing and new.

Thankfully, there are many NCDR avenues to explore as per below.

Mediation

The process of mediation involves the parents agreeing for an independent third party to sit with them and facilitate their conversation.

The role of a mediator is not to provide legal advice but rather guide the conversation and keep it on track with a view to reaching a settlement. This will normally take place at an agreed venue (often a solicitors office) and there will be a series of appointments which explore various arrangements beneficial to the children as well as both parents.

It is also possible to have a hybrid mediation session where each parent can choose to have the support of their respective solicitors if they feel this to be necessary.

Often couples wish to attend mediation but don’t want to be in the same room; mediation is still possible despite this and is known as “Shuttle” mediation which means that the mediator will move between two rooms during the mediation allowing both parties to be separate.

If the mediation is successful, the mediator will then prepare a “memorandum of understanding” which notes everything which was agreed. This can then be left as is, on the basis that both parents agree to follow this, or it can be taken to a Solicitor to be formalised and submitted to the Court for their consideration by a way of a Consent Order.

It is important to understand when attending mediation that you may be directed by the Mediator to seek advice from a solicitor during the process to ensure that you are acting in your best interests. This is because the mediator is neutral and will not advise you individually avoiding a conflict of interest.

Mediation is not considered an appropriate platform if there is a history of domestic abuse between the parties.

There is a cost for mediation but this is normally shared by the parties concerned.

Collaboration

The collaborative process involves the parents and their solicitors who have been trained in the collaborative approach, coming together for a roundtable meeting to discuss any outstanding issues and agree a resolution that suits all involved. There is no specific timetable and the agenda for the day is agreed beforehand to ensure the day has a structure conducive to addressing everything important to the parents.

Again, the agreement can then be formalised and submitted to the Court for their consideration by a way of a Consent Order or used as is by a way of mutual understanding.

It is worth noting that both parties will agree at the outset not to use the solicitors assisting with the collaboration if the collaboration process is unsuccessful and this is often an incentive to reach an agreement.

As with mediation, costs are normally shared between the parties.

Arbitration

The process of arbitration involves the parties jointly choosing a qualified Arbitrator, who is an expert in family law, to make a legally binding decision on their behalf.

The Arbitrator acts like a Judge in Court, listening to both parties and considering the evidence provided. They hear the matter impartially and fairly before coming to a determination that is lawfully correct and binding.

The benefit of an Arbitrator over going to Court is that you get to choose who will make the determination on your matter, they will have sufficient time to read and consider each document provided, and you can agree on a meeting date that suits everyone involved.

The costs in relation to Arbitration are often shared in so far as venue and the Arbitrator is concerned.

Overall, NCDR aims to keep costs down and bring about a faster resolution. Therefore, it is best to keep an open mind to attempts of settling your legal matters outside of Court regardless of what stage of the process you find yourself at.

Why Choose NCDR?

NCDR methods are designed to:

  • Save time: Court delays can last months or even years, while mediation or arbitration often provide faster resolutions.
  • Reduce costs: Avoiding court proceedings generally results in lower legal expenses.
  • Encourage cooperation: By fostering open communication, NCDR methods can help parents maintain better relationships and co-parent more effectively.

Take Legal Advice Early

While NCDR methods offer significant advantages, it’s crucial to seek legal advice from a qualified lawyer early in the process. An experienced family law expert can help you understand your rights, assess the fairness of any agreements, and formalise arrangements to protect you and your child’s interests.

If you’re facing challenges in resolving child arrangements, don’t hesitate to explore these non-court options. Contact our experienced family law team today to discuss your situation and find the right solution for you.

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