Supporting separating parents – in England and Wales

Three recent interesting developments south of the border – when are we going to see such changes in Scotland?

Parents going to Family Mediation already get £500 vouchers towards the cost. According to analysis of the scheme  published by the Ministry of Justice, 69% of the first 7214 families using the scheme were able to reach agreement on some or all issues and are classed as a successful diversion from court. The total amount of vouchers claimed was £3.1m and the average amount claimed per family was £424 .

Now The Ministry of Justice is consulting on whether and how to make sure that parties in private family law disputes make reasonable attempts to mediate and reach solutions before applying to the courts as a last resort – where it is safe and appropriate to do so. This could include empowering judges to hold accountable those who do not engage seriously with mediation, and who draw proceedings out unnecessarily by refusing to reach a reasonable settlement.

Two Private Law Pathfinder Pilots have been running since March 2022 in Bournemouth and Weymouth in Dorset, and Caernarfon, Mold, Prestatyn and Wrexham in North Wales.  These pilots, funded by Ministry of Justice and designed in consultation with a wide range of family justice experts, are intended to trial an investigative and problem-solving approach to private law proceedings, with a particular focus on improving court responses to domestic abuse and enhancing the voice of the child within proceedings.

The Children and Family Court Advisory and Support Service (Cafcass) has just launched a new course and set of resources for parents to help them think about how to prioritise their children’s needs while they are separating.  Although the training is only available in England and Wales, Scottish parents might want to use their online parenting plan which allows separating parents to agree arrangements for their children online and then to consider how they will discuss them with their children.  Using an online process allows one parent to fill in ideas for all aspects to be decided, then forward the plan to the other parent.   The Scottish equivalent lacks this online interaction.

The Children (Scotland) Act passed in 2020 contains plans for changes such as a trial of compulsory dispute resolution meetings before going to court in child contact cases. Three years on, there is still no sign of a start to the trial. The Scottish Government does provide funding to local family mediation service which can be used to subsidise these sessions but we lack the direct incentive provided by the English voucher scheme.

Scottish family courts will see major changes when the new rules on case management come into force in September 2023.  Initial case management hearings will take place at the same time as the initial child welfare hearing, and the intention is to continue this firm control of the case and emphasise discussion of settlement. The new rules also say that “where possible” the same sheriff shall preside over all the court hearings in a case.

Shared Parenting Scotland will continue to monitor the changes that are being made to dispute resolution and family court processes in other countries and lobby for Scotland to do some catching up.

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