Why court isn’t always the answer

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Jennifer Peebles


Phone 01264 325823

Email jpeebles@bsandi.co.uk

"My feeling is that about 20% of the families who come to court to have a dispute about their children resolved, would be better served by at least, first of all trying to sort it out themselves in other ways."

The words of Sir Andrew McFarlane, head of family courts in England and Wales, as reported by the BBC (https://www.bbc.co.uk/news/uk-62272688). He says that too many divorce cases are finding their way to court because those involved believe their disputes involve ‘legal’ issues when, actually, they are ‘relationship’ issues.

The idea of court time being taken up by cases that could be resolved in other ways is nothing new. The growth of alternative dispute resolution (mediation, arbitration and the like) has fuelled a more constructive way of families working through their issues than the court could provide. Mediation, for example, enables willing parties to reach their own agreement about how their assets should be divided on divorce, or about arrangements for their children and it's all done with the help of an independent third party who facilitates conversations that are as amicable as possible. Not only does this relieve the court of cases that would once have been channelled in its direction, ADR can pave the way for better family relationships for the future.

That is not to say that the court is no longer relevant or necessary; far from it. As Sir Andrew has made clear, where there are concerns about the safety of adults or children in family law cases, the court is very much the appropriate forum. Issues of domestic abuse, protection or safeguarding need to be dealt with by a judge. However the point is that, in other situations, the court shouldn’t be seen as the first port of call.

How should families know if their issue is for the court or if it could be resolved in another way? Our advice is to speak to a specialist family lawyer as soon as possible. They will be able to discuss your particular circumstances and suggest ways of getting a resolution. It may be that the court is the next step (perhaps other ways of trying to resolve things have failed, for example, or there are safety concerns), or it may be that there is likely to be sufficient cooperation from your former partner to enable some form of ADR to take place. Sometimes, even communication between lawyers is enough to sort things out.

The key is to find the right avenue for you and the quicker and more constructive this can be, the better – for all involved.

To find out more about ADR, or to speak to us about a family law matter, contact our team on 01264 353411 or at family@bsandi.co.uk.

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