What about me? – Resolution’s perspective

In November 2020 the Family Solutions Group -a sub-group of the Private Law Working Group which was formed to give attention to improving the experiences of/opportunities for separating families away from the Family Court – published its report, What about me?  It is, as one would expect from the stellar group of interdisciplinary professionals who congregated to make it happen, a detailed, enlightened and thought-provoking piece of work.

The report is peppered liberally with ideas and recommendations, with a laudable central theme – encouraging all of us who work in the field of family justice to place the child’s long-term welfare at the centre of all we do. Whereas the current processes for resolving disagreements on separation tend to operate for parents, the report highlights that more focus needs to be placed on the needs of the children of separating parents.

Whilst the report is weighty and leaves us with very much to reflect upon, in fact it is not a formal consultation-inviting document. What is more, it is but part of the detailed and rich tapestry of change (some hoped-for, some forced upon us due to circumstance, some finally happening after years of campaigning) with which Resolution (alongside all who work in family justice) is presently engaging.

In the last few months alone we have worked with the MoJ on the detail of the rule changes around the Divorce, Dissolution and Separation Act, attending several meetings with officials and responding to their consultation now that our 30+ years of campaigning for no-fault divorce has borne fruit. We have engaged with members and MoJ officials over the delivery of family justice amidst a global pandemic. We have continued to be involved as the Domestic Abuse Bill has passed through Parliament. We have worked with HMCTS on new online forms and procedures.

Looking ahead, we have also been considering the Family Justice Board’s statement on its priorities (drawing from the reports of the Private Law Working Group, the What about me? report and the Harm Panel report – see the next article for more details), and have been working with the Law Commission as it develops its next programme of work. What about me? is not a piece of work to be taken in isolation, but rather as part of the wider fabric of reform which is afoot.

Many of the Family Solutions Group’s recommendations sit well with values which are at the heart of the Resolution Code of Practice, our Manifesto for Family Law and all that we do. As a non-exhaustive list of the principles we whole-heartedly endorse:

• A wide public education campaign, to reframe family breakdown away from justice language and towards an understanding of child welfare (whilst highlighting that this is a huge ask).
• A framework of support services for children (whilst questioning when and how best in practice to give the child the opportunity to be heard in any process involving separating parents).
• The safety and co-operative parenting pathways (recognising the need to better assess risk).
• Promoting a role for a new type of professional providing legal information, mediation and counselling services.
• A holistic approach and integrated practice, which Resolution members are well-placed to provide.
• Self-regulated parenting programmes.
• Good practice which looks beyond the discrete issue and considers how any given process will affect the parenting relationship. Our Pod structure is a good basis for local networks of professionals who promote an integrated approach to problem-solving issues between parents.

Much has been written about the proposed Part 3 protocol, aka the Surrey Initiative, which features as an addendum to the report. That is something that has received a mixed response within Resolution. Whilst few practitioners would deny that more needs to be done to enforce existing Part 3 of the Family Procedure Rules, there is not consensus that the Surrey Initiative is the right answer.

Whilst its aims are laudable, the ends to achieve those aims (including costs sanctions against clients and solicitors) are pointy and risk driving inappropriate cases into mediation for fear of sanctions; creating delay which, in children cases in particular, may be used tactically by one parent to the detriment of the other; and taking away one of the main bedrocks of mediation, ie its voluntary nature.

Some of these concerns begin to be countered by eg not putting the court process on hold as mediation takes place as an adjunct; and it would certainly be useful to produce some standard court order clauses for the use of DR complementary to the court process. And many feel that the protocol is better suited to money cases than children cases. But a better focus would arguably be education – of the wider public, the legal profession and the judiciary – about the different types of DR which exist and the court’s existing powers. The carrot is far better than the stick.

In conclusion, and unsurprisingly, very much of what is captured within What About Me? chimes with what Resolution has long been pushing for – helping to steer more cases, where appropriate, away from the family courts; providing more resources to help families access information/advice; and ensuring the centrality of the voice of the child.

Our various committees have been considering the report and identifying the recommendations we are keen to support, in the context of broader work we are undertaking around Resolution Future Practice. We are mindful that Ministers, officials and the judiciary are dealing with competing priorities across all aspects of the justice system, and that there is ongoing uncertainty about the impact of the pandemic (both in terms of practice and the level of resource available to the MoJ and the administration of family justice more generally).

Most important, as we come out of the pandemic we have to assess how consumer needs – those we are helping with separation and divorce – have changed and how best we may serve them going forward.