Last week, the President of the Family Division, The Rt Hon Sir Andrew McFarlane, gave a lecture aimed at the public, to explain why, where there is a dispute about children or family finances following a break-up, the Family Court should be the option of last resort, rather than the first port of call. In doing so, he dealt with a number of matters, predominately relating to disputes about children.
He started by giving a history lesson to set the scene about what the Family Court does and does not do. Parental ‘rights’ and ‘custody’ are phrases we hear too often, people want to know “what are my rights in relation to little Johnny” or “can you help me get custody of little Mary”. These are terms that need to be consigned to the history books; they have no place in modern life. Children are not a possession or a subject of control by one person, they are people with emotional and psychological relationships with their parents.
There are three aspects of the Children Act 1989, the wonderful legislation that governs how arrangements are made for children, that are helpful to consider when deciding the approach to resolving disputes about children:
- The child’s welfare. When making decisions about a child, the court must determine the case with that individual child’s welfare as it’s paramount consideration. The court, in most cases, presumes that it is in the child’s interests for each parent to have involvement in their life, and then the court goes on to consider various factors which impact on a child’s welfare.
- Parental responsibility. This term covers the bundle of duties a person (in every case, a child’s mother, and usually the father) has towards their children. The Children Act makes clear that bringing up children is the responsibility of their parents, and that the role of the state is limited to help, rather than interference. Put simply, it is the responsibility of each parent to sort out the arrangements for their child, not a Court.
- No order principle. There is a common misconception that the court has to make an order, if asked to do so. The Act states that the court shall not make an order “unless it considers that doing so would be better for the child than making no order at all”.
- The Children Act sets out a general principle that any delay in determining the question is likely to prejudice the welfare of the child. Regrettably, there are currently unprecedented delays in the Family Court, as a consequence of years of cut-backs and cost-savings, compounded by the effect of Covid. Cases before the court are not quick, the process often takes over a year. Many court hearings are currently being cancelled at very short notice, often the afternoon before the hearing.
It might seem strange for family lawyers to discourage clients from going to court because very often people think that is what we do, however, as members of Resolution, we know from experience that outcomes for everyone are better where court can be avoided. There are, of course, some cases, for a number of reasons, where court is the only, or the best option to resolve a dispute, and the Family Court plays an important and necessary role in these cases. We are able to assess your case and advise you as to the best course of action for you.
This doesn’t mean that disputes about children will not continue to exist, or that people should be discouraged from seeking advice or support about arrangements for children following a break-up. Family lawyers are experts at resolving disputes, and we can help our clients to do so, where possible without the involvement of the court. There are now so many options for resolving disputes out of court, ranging from DIY or ‘kitchen table arrangements’, to mediation, round table meetings, solicitor negotiation, private arbitration or a private judge. We can help work out the best way to resolve the issues in your case, and guide you through the process.
If you require any assistance or advice in relation to the arrangement for your client, or alternatives to Family Court proceedings, then please contact our office in Fakenham or Holt to arrange an appointment with one of our family lawyers. Our telephone number is 01328 863131 or our email address is [email protected].
