Conflict And Resolution: Confronting Frustration Tactics In The Family Court 

Published on 30 May, 2023 | Louise Butcher

Although we might wish otherwise, family relations are not always without difficulty.

In some cases, even discussions regarding childcare arrangements or the division of joint marital assets which begin quite amicably can become tense.

That can be due to quite natural emotions which arise in those faced with the breakdown of what might have been a long relationship.

It is one reason why the Government has been keen to foster an increase in the use of Alternative Dispute Resolution (ADR) such as mediation rather than taking disagreements to court.

This March, ministers further extended a scheme helping families meet the cost of mediation (https://www.gov.uk/government/news/plans-to-protect-children-under-new-mediation-reforms).

At the same time, however, the then Justice Secretary Dominic Raab acknowledged that there are individuals who are uninterested in settling difference in a less confrontational manner.

That such behaviour exists can be gleaned by scrutinising the latest data published by the Ministry of Justice (MoJ) regarding proceedings relating to what are known as Specific Issue Orders (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2022/family-court-statistics-quarterly-october-to-december-2022#overview-of-the-family-justice-system).

They are orders sought by one parent to determine a specific question which has arisen with a child’s upbringing and can cover a multitude of issues, including whether and where the child goes on holiday, their diet, medical treatment and schooling arrangements.

What they illustrate is the degree of friction which can occur between former spouses or partners when it comes to determining how their children should be brought up.

The figures show that the number of applications for Specific Issue Orders has increased by more than three-quarters (77 per cent) in the course of the last decade.

In addition, more than one-quarter (27.56 per cent) of financial remedy orders – effectively, the ‘financial full-stop’ to a marriage – were contested either initially or until the very end during 2022.

It is true that there might be very practical reasons for questioning how children are looked after or a division of assets is calculated. Thankfully, not every case involves conflict.

Even so, family lawyers like myself are aware of the impact of such behaviour when it happens.

Relatively straightforward issues can become very much more complicated to resolve than is necessary.

As well as the stress which conduct like this creates for adults and children alike, it can make cases longer and more expensive to bring to a close.

It is, I believe, one possible factor in the delays experienced by those whose cases are dealt with by the family courts.

The MoJ has detailed how divorces concluded in 2022 had taken 67 weeks on average from the issuing of a petition until a final order was obtained – up 14 weeks on the year before.

Likewise, children’s cases took five weeks longer on average to resolve last year than they had done in 2021.

I should point out that there is no shortage of effort to tackle the problem.

The introduction of ‘no-fault’ divorce in April last year (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted) – removing the potential for allegations about misconduct at the heart of a marital breakdown to cause dispute – is widely regarded as one step forward.

Furthermore, the Government’s willingness to increase the number of couples who resolve disagreements via mediation and not in court is welcomed.

The measures announced by Dominic Raab included plans to allow judges to “hold accountable those who do not engage seriously with mediation”.

Whilst mediation experts such as my colleague Judith Klyne recognise the importance of overcoming roadblocks to the successful use of ADR, they have questioned whether making mediation compulsory is appropriate (https://hallbrown.co.uk/forced-growth-family-courts-children-and-compulsory-mediation/).

On the basis of my experience of bad behaviour, it is important that families confronted with it have a clear agenda and do not allow themselves to lose sight of their objectives, especially when the well-being of children is concerned.

As frustrating as it can be, it is worth remembering that family courts have immense discretion and can even penalise those responsible for delay and dispute.

There may not always be consensus but there is a genuine will to ensure that conflict does not prevent outcomes which are as timely and fair as possible.