How can I see my child without going to court?
It is common knowledge that by going to court you can seek an order to gain custody or access to your child or children. It is not common knowledge, that there are various other ways to agree child arrangements with your ex-partner. As a caring and concerned parent, you might consider an alternative to court because going to court can be an expensive, stressful, conflict-ridden process that might increase bad feeling and leave it harder to make decisions in the future. Your child will remain a part of both your lives for years to come and the ability to review arrangements together is useful. Here are some of the alternatives to court:
This is the alternative to court that this blog post will focus upon. In short, it involves separated parents meeting with a third-party mediator to discuss child arrangements (and other topics, if necessary, that will not be covered here) in an open and honest way. A mediator can help calm any high emotions, keep the discussions in tight focus and offer guidance if necessary. It can be conducted Face to Face or in shuttle (where a mediator relays information from one party to another). All family mediators are under duty to remain impartial and to ensure this, they cannot hold confidences once the mediation is underway. Remember, mediators do not offer legal advice! That is the job of a solicitor.
- Hybrid Mediation
This is a model of mediation that can involve lawyers/solicitors and other family professionals and might be a useful alternative to family mediation where there are safeguarding issues, or a party is feeling under pressure from the other party and/or have less knowledge in a particular area. It operates in shuttle, where parties do not come face to face to discuss their issues and a mediator goes between the two participants to explore their options and facilitate a settlement. Understandably, it is likely to be more expensive than mediation, but it offers a quicker and less public alternative to going to court. If you would like further information on this option, please contact DMS because we will be able to signpost you to firms that can offer this.
Arbitrators are professionals who have often been judges, barristers, solicitors or senior family mediators, and who are be paid to adjudicate on your case. This does involve you delegating the decision on child arrangements, in the same way as attending court requires a judge or magistrate to decide. It is a form of private dispute resolution that can be quicker and more cost effective than using the courts. For more information, please visit http://ifla.org.uk/
- Collaborative Law
This form of dispute resolution requires each party to agree in good faith to negotiate a settlement outside of court. It will involve instructing and paying lawyers (trained in collaborative law) to negotiate by your side. Any experts which are called in will be neutral and no mediator is involved in the process.
- Private agreement between you and your ex-partner
Perhaps the most important alternative is to recognise that it is also always open to you to agree with your ex-partner without recourse to any of these services. There are tools available, such as the CAFCASS Parenting Plan, which can form the basis of this agreement and guide you in what might be important to cover for the stability of your child’s future.
Anybody with parental responsibility shares a legal duty to try to agree how to bring up their children. Any agreement reached should acknowledge the legal right of a child to be in contact with both parents (Children Act 1989), and it should contain the parents’ own decisions on what is in the best interests of their child.
Mediation does not view child arrangements in terms of custody, or access because this implies that one parent has a superior right to care for the children. The law is clear that a child has a right to spend time with both parents. It will depend on all the circumstances how, when and where visits take place, but as a starting point, parties will be asked what arrangements have been in place and what arrangements each participant would like to see in place for the future.
Parents can attend mediation without consulting a lawyer. Mediators might encourage parents to attend a SPIP (Separation Parents Information Programme), which is one of the actions a court might order. Parties in mediation may sign to a Parenting Plan (drafted by the mediator), which can be used as the basis for a court child arrangement order. This way an agreement reached on amicable terms is also capable of being enforceable.
Clare and her ex-partner Kirsty share two sons, Bradley and Toby aged 6 and 8. Kirsty has been angrily vocal about Clare’s poor time keeping and erratic money transfers for some months. Kirsty decided independently two weeks ago that Clare would not be allowed to take ‘her’ boys to a planned football match on a Saturday, and took them to relatives instead. The following week she stopped another weekend visit on the grounds that she had shifted her work patterns and wanted to take them to the cinema. Clare is concerned that she has no say in Bradley and Toby’s life anymore. Whilst she accepts that Kirsty is living a new life and is looking after the boys on a day-to-day basis, she wants to remain a part of their life. Assuming court was the best place to resolve these issues, she phoned the solicitor who dealt with the dissolution of her civil partnership with Kirsty three years earlier. The solicitor advised Clare that she would be required to attend a MIAM before applying court for a Child Arrangement Order. At the MIAM, Clare discussed the situation with a family mediator and learned that there were alternatives to attending court. She decided to invite Kirsty to meet and discuss the children in mediation. She learned that Kirsty had no intention of removing her from the boys’ life. Kirsty shared that she needed to trust that maintenance would be paid, but understood this should never be used to prevent Clare seeing the boys. They both came away from the process with more trust in each other and an understanding that advance planning and information sharing was key to caring for Bradley and Toby. They also learned about the impact of their conflict on the boys and both vowed to keep their disputes civil in the future. If they had continued to court, they might not have achieved such a flexible and amicable outcome.
A mediator will explain that for a mediation to succeed, each party should listen and empathise with the other’s point of view. It is not incumbent on them to accept this viewpoint, but it is key to understand that each person may have a different opinion and parent differently. From this starting point, a mediator will guide parents to consider all aspects of their child’s care. This can range from immediate actions e.g., reassuring children when they are away from a familiar home, right through to introducing decision making mechanisms to assist when changes occur in a child’s future.
In many mediations how parents communicate will be high on the agenda, because parents may be experiencing sadness, anger or frustration linked to their separation and this affects their interactions. In so far as possible, a mediator will make suggestions to improve how parents share information and encourage business-like communications that remain child focused.
Mediators are professionals, who offer an alternative to the expense and stress of going to court. Most parents want the best for their child, no matter what differences there are between them. The courts recognise this and as a pre-requisite to applying to court, they ask parents to engage in a MIAM (Mediation Information and Assessment Meeting) with a mediator. This is a meeting which takes place with each individual participant with a trained family mediator to assess whether mediation is appropriate to their case.
If a mediator has any concern about the safety of a child or participant during the process, mediation will be stopped. In some circumstances, going to court is the only appropriate way to proceed, but mediation recognises parents are normally best placed to decide what is in their own child’s best interests.
Want to known more about family mediation?
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Frequently Asked Questions
What is mediation?
Mediation is a form of alternative dispute resolution where a trained mediator will sit as an impartial third party and facilitate a constructive conversation between yourself and your ex-partner. The aim of mediation is to resolve your disputes independently and come to agreements that work for both of you. Your mediator does not give legal advice, but can give you legal information to support you in your discussions.
What is arbitration?
Arbitration is another form of alternative dispute resolution where a third party will sit and make a decision on your case. It is very similar to the Court process in that a delegated individual will listen to your case and make a decision. It is sometimes preferred to Court because it is a quicker and cheaper solution.
Do I need a solicitor if I want access to see my child?
You do not always need a solicitor in family law disputes. If you are using collaborative law or solicitor led negotiation then of course you will, but otherwise it is not necessary. Some people choose to receive some legal advice before engaging in mediation, for example, but they do not pay for legal representation.
How much does it cost to use an alternative dispute resolution?
Legal interventions and all forms of alternative dispute resolution have costs associated with them. Some are cheaper than others. It is well known that solicitor involvement and court proceedings are at the higher end of the scale. Mediation is probably the cheapest and quickest, other than resolving matters yourselves.
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