03 August 2020 Simon Blain

Family values

Simon Blain considers whether there is a growing trend towards private dispute resolution in family law cases in England and Wales

The family justice system straddles the private and public spheres. At one extreme, the state, in the form of local authority social services departments and the family courts, acts to protect children and vulnerable adults from abuse and harm. At the other, the family courts are asked to adjudicate entirely private disputes between family members, relating to the shared care of children or the division of family wealth on divorce.

The court cannot be excluded entirely, even in the case of private disputes. Only the court can terminate a marriage, and the only way to ensure that a financial settlement on divorce is binding, and to exclude future claims, is for the financial settlement to be recorded in the form of a court order.

The process of achieving a settlement however, need not involve the court. The family court itself encourages early settlement by listing cases for mandatory hearings, at which negotiation and compromise are actively encouraged by the judge, the financial dispute resolution appointment (FDR) for financial cases, and the first hearing dispute resolution appointment (FHDRA) for cases involving children.

An essential skill for family lawyers is to guide their client towards the form of dispute resolution that is likely to be most effective for their circumstances. At one extreme, an amicable separation, where the children have left home and the parties are thoroughly familiar with one another's finances, is likely to be suitable for mediation. At the other, a history of financial control or secrecy will indicate that litigation is appropriate, so as to make full use of the court's power to compel disclosure and freeze assets.

The family court, however, has become a less attractive forum in recent years. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 initiated a number of reforms to the family justice system, whose combined effect has been to render the family courts less efficient. Faced with crumbling court buildings, crammed lists and a profusion of self-represented litigants, it is unsurprising that alternative forums for dispute resolution have been growing in popularity.

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