Joe Swash, star of Dancing on Ice and I’m a Celebrity, talked to the press this week about how going to Court over arrangements for his son was “the best money he had ever spent”. He commented that “that’s what Courts are there for, to sort things out” and that the process had “changed their lives”.
I’m really pleased that Joe had such a positive experience of the Court process and it certainly sounds as though the outcome in his case has been highly successful.
While I agree with him that there’s a time and a place for Court proceedings and there are of course situations where this is the best or only way forward, applying to Court is definitely not an easy option or a step to be undertaken lightly.
There are all sorts of process options which can be considered or attempted before an application to Court is made.
The easiest and most cost effective option is of course for the parents to agree matters between themselves, in which case there is no need for any legal involvement whatsoever.
If the parents need professional support to discuss child arrangements in a constructive way, then mediation can often be a great first step. The mediator is neutral and independent and will do their best to help both parents come to an arrangement which they agree will work for them and their children.
Given that the parents will continue to co-parent the children for the rest of their minority (and sometimes well into their adulthood), it is really important to try to keep the lines of communication between them open, so that they can work together flexibly in the interests of the children, regardless of the breakdown of their own relationship. Mediation can be a great and cost-effective way of achieving that. It can also, in appropriate cases, include the children in the process, so that their voice is also heard.
There are of course many situations where tensions are running too high for the parents to reach agreement themselves, even with the assistance of a mediator. In that scenario, it is often helpful to involve solicitors. In some cases, involving solicitors can unfortunately polarise matters further and it is important to choose a solicitor who will keep in mind (and in their client’s mind) the welfare of the children, rather than simply arguing their client’s case robustly regardless. Solicitors who are members of Resolution have signed up to a code of practice which places the children at the heart of their work and finding a Resolution member to represent you is often a good first step. Solicitors can assist in a variety of ways, according to your case, including correspondence, phone calls and round table meetings.
Inevitably there are some situations where no professional assistance will enable the parents to agree on the outcome for the children and a decision will have to be imposed on them by a third party. This can either involve an application to Court or potentially using the process of Arbitration. Arbitration is a process which the parents would enter into by agreement and they would jointly appoint an Arbitrator (a suitably qualified senior solicitor or barrister) to hear their case, as a Judge would do. Once the Arbitrator is appointed by agreement, they then take charge of the case and have the power to make binding decisions in the same way that a Judge in the Court process would do.
The key benefits of arbitration are that the parents get to choose the arbitrator (usually with the assistance of their solicitors, although they can represent themselves), decide the timeframe and the procedure to be used. In this way, although the ultimate decision is out of their hands, the parents are firmly in charge of the identity of the decision-maker, the timing and location of the “hearing” and the process they wish to adopt. In many cases, there will be a “hearing” in front of the arbitrator, as there would be in front of a Judge, but it can also be possible to have the issues dealt with based on paper arguments and evidence. This means that the long delays inevitably involved in Court proceedings (which have only got worse since Covid-19) are avoided and matters can be dealt with much more quickly. The whole case could potentially take less than a month to obtain a final decision, rather than waiting months or years for the Court to deal with it. Additionally, while the Court process can run smoothly, any family lawyer will also be able to tell you horror stories of lost bundles, hearings being cancelled at the last minute, or being rescheduled due to a lack of judge even though time and money have been spent in preparation, or a Judge/Magistrates simply not having the time on the day to deal with the case properly. An arbitrator chosen by the parents will always have the time set aside to deal with the case and to prepare for it in detail.
That said, if one parent refuses to use the arbitration process, they cannot be forced to do so and the only remaining option is to make an application to Court to have the situation dealt with there. While the Court process is fraught with challenges and delays, there can also be positive experiences and outcomes which enable the parties to move forward with certainty for the benefit of the children.