Divorce cases that involve disagreements about children are often described as “difficult”. Emotions run high; at a local level the judiciary may have to fall upon its own judgement when asked to choose one suitable option above others. Bitterness, heartache and large legal bills can result. Is there another way? I think so.
The majority of children cases relate to the practical arrangements of what happens to their children following the breakdown of a marriage or parental relationship. As Head of the Children’s Department at Stowe Family Law, I have been involved in a number of cases in which one or both parents have asked the court to intervene. Sometimes there are issues that concern child protection; other cases feature styles of parenting that are no longer considered acceptable after a relationship’s failure. The majority of cases concern the practical arrangements and the frequency and duration of the time each parent spends with the children. It is this latter category that has caused me growing concern over the past few years.
The pressures under which the local judiciary operates have not helped. A case scheduled for its first, second or even third appearance may only be listed for a quarter of an hour. Judges are asked to make rigorous, reasoned decisions quickly – and yet some of these cases feature complexities that stretch back years. There may not be time to facilitate a fragile agreement when everyone feels so rushed.
The other difficulty is that too much pressure is placed on parents to sort out their own problems. In some cases, this is simply too much to ask.
Conciliation hearings have made regular appearances in the London courts for several years now. I am delighted that a conciliation hearing scheme is now up and running in Leeds, where a number of our clients are based, and also hope that the scheme will be extended to Manchester so that our north west clients can benefit too.
This is how such a hearing works: parents and their lawyers are invited to court, for a session that lasts a full hour. Once in court, the judge takes every effort to bring the parties together and try to ensure they do not leave without – at the very least – a fragile agreement in the form of a court order.
I recently acted in a case in which the parents agreed that either was capable of looking after the child. However the mother had misgivings about various issues, and the parents could not agree on the exact times for contact and holidays. At the conciliation hearing, the great advantage was that the judge had the time to consider the issues aired and to ask the parents questions. The judge was also able to offer guidance: for example, challenging an assertion about how tired a child would be if away for the weekend. The judge expressed a view that the child would be tired with either parent, as each would be doing the same activity. This seemed to be acceptable and, as the judge was able to convince each side to compromise on times, the parents left with a fragile but workable order. The other advantage of a conciliation hearing is that successful cases remain in the conciliation list and can be reviewed at later hearings.
Don’t get me wrong: conciliation hearings aren’t a “walk in the park”. These are difficult occasions. Compromises must be made, with judges challenging objections and attempting to cut through them to find a way forward.
Cynics will probably argue that conciliation appointments would not be worth the time or hassle, because by such a stage the parties may barely be talking. It is certainly true that without co-operation from both parties, conciliation hearings will not achieve their objectives. Neither will they work if there are significant welfare issues, because the court will not put children at risk no matter how enthusiastically the parents reach agreement. When there are no such concerns, however, I do believe that these appointments should be tried. After all, what do the parties have to lose?
At Stowe Family Law we have seen conciliation hearings work time and time again, bypassing months of arguments and costs. I would be happy to discuss with any of you how we might approach these issues and to discuss what this new court process is like in, so please do leave any questions for me in the comments or contact me directly to discuss further.
Stephen Hopwood is a child law specialist and Head of the Children’s Department at Stowe Family Law. He has been involved in aspects of child law for over ten years and has particularly advanced the concept and practice of joint residence. He has also been involved with cases with complex foreign elements, and specialises in cases that have become “bogged down” or “written off”.