House of Commons - Operation of the Family Courts

Operation of the Family Courts - Justice Committee Contents

5 Mediation and other means of preventing cases reaching court

Background

74. In this Chapter we note the number of private and public law cases reaching the courts and consider whether early intervention provides a means of reducing the number of such cases. We then consider the use of mediation as a potential source of (relatively) quick and cheap resolution of private law cases.

Public law

Number of cases reaching court

75. In 2009 (the latest year for which figures are available) 25,810 children were subject to public law applications, and some 17,090 of these were care applications.[102] This represents a 45% increase in care applications and a 31% rise in public law applications overall. Cafcass publishes monthly figures (discussed in more detail in Chapter 6) on care cases (a subset of public law cases) which show that the number of care cases has continued to rise, increasing from 8,826 in 2009-10 to 9,152 in 2010-11 (a case can involve more than one child).

76. Despite the increasing numbers, we were told that unnecessary cases were not being brought before the courts. Bruce Clark, Director of Policy, Cafcass, told us that:

Certainly, our immediate own post Baby Peter research showed that no footling irrelevant cases were being brought before the court in a panic. The cases that were being brought in the immediate wake of the Baby Peter publicity were long-term chronic neglect cases, and there were strong arguments that these cases should have been being brought before the court sooner and they should not have been kept away from the court.[103]

77. The research Cafcass carried out was in the form of a survey in June/July 2009 which asked guardians about care applications made in the 3 weeks after the publicity over Baby Peter's death. It found that the profile of cases was similar to those found by earlier studies conducted before the Baby Peter case. It concluded that "overwhelmingly, children's guardians felt that in the cases referred to in the survey, the [care] application was either timed appropriately (53.7%) or had been delayed (43.9%). In just 2.4% (2 cases) the guardian indicated that they believed the application was premature." Most workers felt that local authorities had not changed the threshold at which they launched care proceedings. Instead they were launching care proceedings closer to the time the legal threshold was reached, while in the past they might have waited. Because of the time it takes for cases to reach a conclusion, the report was not able to look at whether judges agreed with the Cafcass worker's view.[104]

78. The Minister, Tim Loughton MP, Parliamentary Under-Secretary of State, Department for Education, was more cautious than Cafcass, but said that:

certainly the number of children in care about whom the courts have then upheld that was the right decision would suggest that perhaps more children should have come into the care system pre-Baby Peter than actually did.[105]

79. The MoJ told us that "Prior to Baby P, in roughly 9 out of 10 cases, the courts made an order (i.e. to take the child into care, adoption, or place with a relative etc). The Ministry of Justice has no evidence to suggest that the proportion of orders made has decreased in the post Baby P cases", but it did not supply us with figures.[106]

80. There are problems with using the published statistics to calculate whether the number of cases the courts are upholding has changed. The latest published figures are from 2009, and these show that the number of care orders made increased from 6,240 to 7,640, while the number of cases withdrawn increased by 28 to 298 and the number of refused orders remained the same at 20. However this only covers cases which were concluded in 2009, and the average case length means that most of the cases resolved in 2009 would have been brought prior to the increase in cases associated with Baby Peter (which started in November 2008). In addition, because it is not possible to link outcomes with applications, these figures do not indicate whether a lower percentage of cases resulted in orders. They do indicate that the proportion of disposals has not increased in line with the increase in applications, reflecting increases in the duration of cases. This problem with matching up cases has meant that it has been necessary in the past to commission research to calculate the proportion of applications resulting in various types of orders. The Care Profiling Study (Masson et al 2008) was commissioned to provide such data.

81. Cafcass, the Education Minister, and the MoJ all told us that it is not the case that too many care cases are coming before the courts. However, because of problems with the statistics it is not possible to tell if the proportion of cases in which the courts agree with the local authorities' assessment has changed. We note that in the past it has been necessary to commission research to calculate the proportion of applications resulting in various types of orders. There may be a need for further such research in future if there appears to be a significant shift in the proportion of cases in which the courts reject the assessments of local authorities.

FAMILY GROUP CONFERENCES

82. One suggested means put to us for preventing cases reaching court was the use of Family Group Conferences (FGCs). They originate from New Zealand and aim to support families (including extended family members and friends) to draw up a plan to enable the child to remain with the immediate or extended family. FGCs are voluntary, but the families are aware that if nothing is agreed the child may be taken into care. The family, and often the child, meet with a social worker and a co-ordinator who may be from a charity or a separate part of social services. The plan is constructed by the family (in private) but must address the local authority's concerns. The local authority can set conditions, for example stipulating that the child cannot live with a particular person. The family can ask for support as part of the plan. The local authority then chooses whether or not to accept the plan. Depending on the details of the case and the plan it may avoid the need for proceedings, or the plan may need to be confirmed by court orders. The Interim Report noted that there were a variety of commissioning models and that the use of the technique varies between local authorities. It said that FGCs were "usually seen as a means to avoid proceedings" rather than as a form of mediation whose conclusions could be confirmed by the court.

83. The Family Rights Group explained the potential benefits of FGCs in its submission:

FGCs are proven to:

Result in extended family members stepping in to support struggling parents and when necessary to take on the care of the child if s/he cannot remain with their parents;
Engage fathers and paternal relatives;
Give children a voice;
Improve outcomes for children at risk.[107]

The British Association of Social Workers was also very supportive of this approach.[108]

84. The Family Rights Group told us that a 2009 survey found that 69% of local authorities in England and 18 out of 22 authorities in Wales have or are setting up an FGC service.[109] The Interim Report found that "most (possibly all) local authorities now offer some form of FGC service". Barnardo's said in written evidence that it would like to see an entitlement to FGCs in care proceedings. Jonathan Ewen, Director, Barnardo's North East, told us that FGCs cost between £1,000-2,000 per family. A typical court case would cost the local authority £4,825 in court fees alone. He also assured us that FGC would not add to delays because:

if we were able to be sure that at no stage in the care proceedings another relative was able to come forward to be assessed, it means all that work would be done before you got into actual proceedings. That means the proceedings could flow forward much more speedily.[110]

85. A survey by Cafcass[111] found that "late emergence of family members wishing to be assessed as potential carers" was the second most common reason given for cases not proceeding as timetabled. However, this was the finding of a survey of Cafcass workers, rather than a review of case files, and so does not give an indication of how many cases may be affected by this problem. The Family Rights Group claimed that 90% of FGCs reached an agreement that the local authority accepted, and that this prevented children being taken into care in 32% of cases and prevented proceedings in 47% of cases.[112] Mr Ewen told us about the work of Barnardo's Liverpool Family Group Conferencing Service which claimed an even better success rate: it had worked with 27 families, and not one proceeded to care. However it should be noted that not all cases in an area are referred to FGC, and that the families are carefully selected. If FGCs were rolled out to all cases, the success rate could well fall.

86. Barnardo's told us that note should be taken of the cost savings of FCGs:

[The Liverpool FGC] cost £88,000 to run but saved the local authority approximately ten times that amount in care fees. Despite being regarded as a successful and cost effective service by the local authority, last year [2010] Liverpool announced it would no longer be able to continue funding non statutory work. The service has been forced to make significant cut-backs.[113]

87. The Family Rights Group also reported considerable savings from FGCs, with a recent sample of four local FGC projects finding that they have prevented 159 children becoming looked after in the last year, including avoidance of proceedings for 87 children, at a saving of approximately £6.76 million.[114]

88. Family Group Conferences are a way to enable parents to makes necessary changes in order to retain care of their children, or to enable children to remain with the extended family. In cases where it is not possible for the child to remain with the family, they can help reduce delays once the case reaches court. Given the high costs of court cases, legal aid and the high costs of keeping children in care, the potential saving from even a small reduction in the number of care cases is considerable. We were very impressed by the account of Family Group Conferences in Liverpool. It is a matter of regret that a service with an apparent 100% success rate is being cut back.

OTHER MEANS OF DIVERTING PUBLIC LAW CASES FROM COURT

89. We also took evidence on the use of "letters before proceedings". These are letters that Government guidance recommends local authorities should send to parents when they are considering care proceedings. The letter should set out what the local authority's concerns are, how these can be addressed, and what help and support is available. The letter should be written in jargon-free language the parents can understand, and if necessary it should be translated. None of the information in the letter is supposed to be new, and it should all have been raised in previous meetings. The letter invites the parents to a Pre-Proceeding Meeting where the local authority and the parents try to agree a plan drawn up by the local authority. Receipt of such letters also confers eligibility for legal aid on the parents concerned. The Family Rights Group told us that the use of letters before proceedings was "patchy" and that:

it is often sent so late in the day that there is no time for parents/wider family members to make the changes necessary to overcome the concerns before care proceedings commence. We would recommend that the guidance be revised so that local authorities are encouraged to send the letter at least 3 months before proceedings are likely to be initiated unless there is an emergency.[115]

90. A study by Cafcass looking at the impact of the Baby Peter case found that Cafcass was sure that a letter before proceedings had been sent by the Local Authority in 39% of cases, and was also sure that a letter had not been sent in 39% of cases, (although half of these were emergency protection orders where the urgency of the application meant that a letter could not be sent).[116] The MoJ told us that it did not hold any information on numbers of letter before proceedings issued.[117] The Interim Report said that:

it makes sense to give parents due notice, with a clear statement of the changes they need to make, rather than going straight to court. But there is a need for research on what works and why some areas of the country are not using it.[118]

91. We agree with the Interim Report that further research is required on a range of measures which could potentially help parents to make changes which could resolve pubic law cases without taking children into care, or without proceedings. We are particularly interested in the wider use of "letters before proceedings". However, the Department has no data on how often they are used, what the barriers are to their wider use, or how effective they are. Given that receiving a letter before proceedings confers entitlement to non-means-tested legal aid we find this lack of any evidence base particularly surprising. We recommend that the Government should commission such research.

Private law

Number of cases reaching court

92. The number of private law cases have been rising since 2005, and the 2009 figures represented a 14% increase on the previous year. In 2009, some 137,480 children were the subject of private law family cases. Currently 90% of separating parents do not use the courts. The MoJ told us that it believed this figure had remained stable between 2002 and 2007.[119] However, some of those 90% will be unhappy with their contact arrangements, and in up to 30% of cases one parent does not see the child but does not challenge that in court. [120]

93. We heard that the families that did reach court were those with multiple problems:

Many are victims of violence, or are perpetrators whose need for representation and advice is no less great. Many have lives blighted by alcoholism or drug abuse. Many of our clients do not have English as a first language; many speak no English at all—vital instructions are communicated through interpreters.[121]

94. Research has found very high levels of domestic violence in private law cases which reach court. In a 2005 study, 53% of women reported physical or emotional abuse as a cause of the separation, with actual or fear of violence continuing post-separation for 40% of women. Actual violence or fear of violence prior to the application was reported by 24% of women who had not reported violence during the relationship. The study noted that despite the high levels of domestic violence only about 15% of cases had an injunction or protective order.[122]

95. Research for the Ministry of Justice by Joan Hunt and Alison Macleod of the University of Oxford found high levels of safeguarding concerns, only about a third of which related to domestic violence.[123]

In 54% of cases (167 of 308) the resident parent raised concerns over serious welfare issues: domestic violence (34%); child abuse or neglect (23%); parenting capacity affected by drug abuse (20%), alcohol abuse (21%), mental illness (13%) or learning difficulties(1%); fear of abduction (15%). The proportion rose to 82% of cases (89 of 108) where the resident parent initially opposed any direct contact.

96. The study also found that domestic violence was alleged in 50% of cases (this figure is higher because it includes historic domestic violence or where it was not raised as a welfare concern). Some cases in which there are safety concerns are not reaching court under the current arrangements. Fiona Weir, CEO, Gingerbread, told us that in cases which did not reach court: "we find even where contact is continuing, in about 10% of cases, there is an ongoing safety issue that is concerning at least one of the parents."[124]

97. We received evidence that a large number of private law cases that currently reach court involve families with multiple problems. A high percentage of cases involve domestic violence or other child protection concerns. Care must be taken that any measures to divert cases from court only seek to do so where that is in the best interests of the child. This will be more complex than simply screening for domestic violence.

Early Intervention

98. In our terms of reference we asked about "the role, operation and resourcing of mediation and other methods in resolving matters before they reach court". The vast majority of the submissions we received focused on mediation. However, we did receive some evidence about even earlier intervention to prevent private law cases reaching court. Early intervention can include:

Peer support groups;
Leaflets;
Helplines;
Educational DVDs;
Parenting Classes;
Information sessions;
Advice from schools or Sure Start Centres;
Websites (including DirectGov);
Counselling; and
Therapeutic interventions.

99. However, we received no evidence of evaluations which established the effectiveness or otherwise of the interventions listed above. Gingerbread called on the Government to undertake such research:

[We call on the Government to] Conduct a robust cost/benefit analysis of different interventions intended to improve child outcomes, reduce parental conflict and reduce the use of the courts, drawing on evidence from the UK and elsewhere. This should include a broader analysis in terms of long-term cost savings of better outcomes for children.[125]

100. Providing an early intervention service to all parents, in an attempt to target the 10% of parents who go to court, would not seem to be a cost-effective use of resources. However, if the intervention is seen in terms of child and family wellbeing, rather than solely in terms of the number of cases reaching court, then early intervention may have real benefit. We also heard that in some cases intervening later is not effective as positions have become entrenched.[126] The small proportion of cases reaching court means that any study of the effectiveness of early intervention would have to be carefully designed to deliver reliable results.

101. It is also worth noting that there are currently up to 30% of cases where one parent has no contact but does not apply to court. There are also cases where one parent is unhappy with the current level of contact but does not make a court application. Any early intervention or additional information could help these parents make better informal arrangements about child contact. However, it could also encourage more parents who were unhappy or denied contact to go to court. In some cases it could be in the best interests of the child for this to happen, for example if one parent was denying the other parent contact without good cause. The chance of an increase in the number of court cases could be minimised by high quality interventions, but, given the high number of cases with no contact, an increase in the number of parents making court applications for contact is a real risk.

SIGNPOSTING

102. With the wide range of interventions available parents need to know what to choose and how to access it. We heard that there was a problem with parents not knowing how to access the help that was available. Fiona Weir from Gingerbread told us that:

What parents tell us again and again is that they don't know what's out there. There is a real issue about navigating. They are not being signposted effectively to what the mix of interventions is from information to advice to counselling to mediation that could help them.[127]

103. The Government is seeking to address this problem. On 13 January 2011 the Department for Work and Pensions published Strengthening families, promoting parental responsibility: the future of child maintenance.[128] The consultation primarily focused on the reform of CMEC (the former Child Support Agency). However, the document also included proposals relevant to the family courts. The consultation asked "whether a single website and a single helpline linking up the range of support available online and in local communities for separating families might be appropriate." These could be run by voluntary or community groups, and could also "build on and complement the existing government and voluntary and community sector services..."[129]

104. In parts of the consultation the proposed new service appeared to be about joining-up information which was already available: "integrat[ing] the support currently provided to empower families" and "fully integrating the emotional support people may need". However, other parts of the consultation proposed more than just integrating existing services, stating that the proposed helpline "could offer an initial triage for problems, with greater emphasis on self-help tools, encouraging parents to make their own arrangements, but also fully trained advisers to help assess cases and refer families on to the most appropriate support." The proposal does not include any costings, on the basis that the cost would depend on which model was finally decided upon.

105. The Interim Report made its own set of proposals to tell parents about services. It recommended:

the introduction of an online information hub for England and Wales to provide a single point of access for information, legal documents and applications for family related issues. The online system would be supplemented with a telephone helpline and paper based information for those without access to the internet or who need further information on a specific issue. This will include:

clear guidance about parents' responsibilities towards their children whether separated or not, including their roles and responsibilities as set out in legislation;
information and advice about services available to support families, whether separated or not;
information and advice to resolve family conflicts, including fact-sheets, case studies, peer experiences, DVD clips, modelling and interactive templates to help with Parenting Agreements;
advice about options for supported dispute resolution, which would highlight the benefits of alternative forms of dispute resolution, including mediation, and PIPs;
information about court resolution, should alternative dispute resolution not be suitable, and costs of applications;
support for couples to agree child maintenance arrangements;
guidance on the division of assets; and
what to do when there are serious child welfare concerns.

The hub should include support and information for children and young people, to help them through this difficult time. It will provide information to divorcing couples about the divorce process, directing them to the online divorce portal where they will find the forms and tools they need. It should also be a source of information for wider family members, who can often be the first and main point of information and emotional support for separating couples.[130]

106. More support for separating parents could reduce the number of cases reaching court and reduce the negative impact of separation on children. However, there is currently a lack of evidence as to which early interventions are most effective. There is also the risk that some of the numerous cases where one parent has no contact could be diverted into court. We are not clear to what extent the proposals in Strengthening Families are proposing a referral and signposting service or a service which itself provides additional help. We call on the Government to clarify this.

107. Currently only one in ten separating parents resolves their disputes in court. The evidence we received is that a large number of these parents have multiple problems. This means that they are unlikely to be diverted from court by anything other than intensive intervention. In addition, there are many cases involving safeguarding concerns which should not be diverted from court. Some parents could be diverted from court by low-level intervention, but the Government should be realistic about the impact of any proposals on the number of private law cases reaching court.

RESOURCES

108. If more families are to be referred to various early intervention services, those services will need to be funded. In the current financial circumstances, such funding is in short supply. For example, Strengthening Families suggested more training for Sure Start staff to enable them to "respond to relationship distress" and "provide access to relationship counselling". It suggests that local authorities should intervene with families early to provide parenting programmes and conflict resolution programmes (these would not be provided in cases of domestic violence). However, the proposals do not comment on whether extra funding will be provided to help local authorities fund these interventions, or to fund additional training for Sure Start staff. Some Sure Start Centres are facing closure or reduced services as a result of spending cuts.[131]

109. We also heard that some current early intervention services are under threat. Fiona Weir told us that:

The obvious worry is what is out there. When you look at the services for families that work and support families, most of them are desperately under pressure for funding and we may see quite a significant reduction in what is out there over the next year rather than an increase. To make that vision real it is going to require some investment.[132]

110. The National Association of Child Contact Centres was concerned about the increasing reliance on the voluntary sector:

straightforward contact disputes never now come to court yet the numbers themselves continue to increase and much of the external provision is provided by the voluntary sector and by volunteers heavily reliant on a reducing number of funders.[133]

111. The wider funding to accompany any signposting service will be crucial. There is no point in referring parents to services which have no capacity to cope with additional demand. However, we know that resources are scarce and that it is unrealistic to make demands for widespread increased Government spending in the current climate. We heard during our previous inquiry into legal aid that the Big Society Bank will be a potential source of capital for charities and social enterprises, by means of social impact bonds and other financial products. We call on the Government to confirm that such bodies which provide early intervention for families which need assistance would potentially be eligible for such capital and to ensure that those bodies understand how they can become involved. We also think that the Government should consider whether the payment-by-results principle which it is championing elsewhere might be applicable here, with financial incentives available for organisations which have a successful impact providing effective support for families. Our predecessor Committee's report on Justice Reinvestment made the case for more funding to be spent on early intervention, with consequential reductions in the need for expensive prison spaces at a later date; we support that approach as a longer-term aspiration for criminal justice policy.

Mediation

112. The Government is keen to encourage the use of mediation. Two recent measures, the Practice Direction, and the Government's Proposals for the Reform of Legal Aid in England and Wales both seek to encourage the use of mediation, the first amongst privately-funded parties and the second amongst legally-aided parties. Increasing the use of mediation seeks to reduce the burden on the court system, on Cafcass, and on the legal aid budget. It also seeks to improve outcomes for families by avoiding a long adversarial court process. However, mediation will not work in all cases (as the Government accepts) and we now consider how it can best be used.

CURRENT SYSTEM

113. In 1997 it was made compulsory for people applying for legal aid for private family law cases to consider mediation. However, parties who funded their legal proceedings privately had no obligation to consider mediation. Evidence suggested that many were not aware of the option (discussed further below). This situation recently changed with the introduction of a new Practice Direction.

PRACTICE DIRECTION

114. On 6 April 2011 Practice Direction 3a—Pre-Action Protocol for Mediation came into effect. The Practice Direction requires that any couple "considering applying" for an order in the family courts must attend a "Mediation Information and Assessment Meeting" (MIAM) about "family mediation and other forms of alternative dispute resolution". If the parties are willing to attend together the meeting may be conducted jointly, but where necessary, separate meetings may be held. The meeting is designed to cover all aspects of the divorce or separation, not just arrangements for the child. The court will ask whether a litigant has attended a meeting and "can require that they do so before considering any application". The Practice Direction does not define a mediator, but gives information of where family mediators may be found. The Legal Services Commission (LSC) sets minimum standards for publicly-funded mediators, however, at present anyone can set themselves up as a privately-funded mediator with no qualifications or training.

115. The Practice Direction sets out the circumstances in which people do not have to consider mediation. These include cases where the parties already have an agreement and are only seeking a consent order, where the order is urgent due to a physical threat to the child or where an allegation of domestic violence has been made and this has resulted in a police investigation or the issuing of civil proceedings for the protection of any party within the last 12 months. This is a narrow definition of domestic violence very similar to that originally proposed in the Government's Proposals for the Reform of Legal Aid in England and Wales. The Government subsequently broadened the definition and included cases where there are safeguarding concerns. The same broader definition should apply in this instance.

116. Parties are only required to attend a meeting about mediation. Once they have been to the meeting, even if the mediator believes they are excellent candidates for mediation, they are free to go straight back to the court. Mediators can set their own fee for the MIAM, the LSC rate being £130 for a couple.

117. We heard evidence that in Australia the increased use of mediation had led to delays for some families.[134] However, the Minister told us that he did not believe that the Practice Direction would lead to delay, because:

Even if someone goes for a mediation assessment, if they want to be difficult, they can say, "I am not interested in mediation." If that is the case, then the case goes immediately to court. That is the reason for the assessment coming to an end, if you like. I do not see this as being a cause of delay. I only see this as a cause of cases being speeded up.[135]

118. We broadly welcome the Practice Direction. The previous system, where people on legal aid had to consider mediation but those who could afford to pay their own fees did not, was patently unfair. The Practice Direction will ensure that all parties have considered mediation, which will reduce the burden on the courts. We also welcome the fact that the Practice Direction is not limited to mediation but includes other forms of dispute resolution.

119. We note that the Practice Direction uses a definition of domestic violence similar to that in the legal aid Green Paper. In its response to the consultation on the Green Paper the Government adopted a broader definition and encompassed safeguarding concerns. We recommend that the Practice Direction is changed accordingly.

TRAINING

120. Publicly-funded mediators must be registered with the Legal Services Commission which requires them to have:

successfully completed the competence assessment process managed by member organisations of the Family Mediation Council; or
be a practitioner member of the Law Society Family Mediation Panel.

121. Non-publicly funded mediators do not need any qualifications and are not registered. The Children's Commissioner told us that:

[Mediators] do need to be registered and regulated. They need to be held to account for what they do. You can't just put your name on a card you've had printed at a motorway service station and call yourself a mediator.[136]

However, that is exactly what the current rules allow at the moment. The Minister told us that he had mixed views on the current situation. He said that:

[People] may not want to go through the court system or the public system at all. They may want to use their neighbour as a mediator. This sort of thing happens in real life.[137]

122. However, he also said that:

What we are saying, though, is that there should be higher levels for those who do go to mediators. There should be an expectation of a certain quality. We are working on that at the moment with the FMC [...] This is going to take time, but it is something that is very much being concentrated on. I know also that the professional bodies such as the Law Society are very keen that this should happen as well. So I think we are all heading in the same direction.[138]

123. Poorly trained mediators raise several areas of concern:

Failure to recognise child protection concerns, leading to agreements which put children at risk;
One-sided or parent-focused agreements which do not recognise the needs of the child (both discussed below);
Mediators failing to realise quickly that a case, for whatever reason, will not be resolved by mediation, leading to higher costs for parents and delays for children ;
Poorly mediated or unworkable agreements which then break down. This wastes parents' money, causes delay, and adds to the number of court cases;
Poor quality mediation leading to a failure to reach agreements where agreements would have been possible with a better mediator. This leads to delays and unnecessary expense.

124. The 2007 NAO report (which looked at publicly-funded mediators) found that 25% of clients were unhappy and complained of mediators who "had not been good at his or her job, had been rude, unsympathetic or inexperienced, had not been impartial, made the client feel pressured and was unfair".[139]

125. The Interim Report said that:

Mediators [including privately-funded ones] should at least meet the current requirements set by the Legal Services Commission. These standards should themselves be reviewed in the light of the new responsibilities being laid on mediators. Mediators who do not currently meet the LSC standards should be given a specified period in which to achieve them.[140]

126. Poor privately-funded mediation is bad for parents (who have to pay for it), children (who are impacted by the delays it causes and by agreements which do not consider their needs) and also for the tax payer. While the tax payer does not have to pay for the mediation, the public purse bears the cost when mediation fails and cases reach court that could have been resolved by better trained mediators. We are very concerned that there are currently no minimum qualifications for privately-funded mediators. We agree with the Interim Report and recommend that privately-funded mediators should have to meet the current requirements for legally aided mediators set by the Legal Services Commission.

The effectiveness of mediation

127. We heard from many witnesses about the potential benefits of mediation. Families need Fathers told us that "court is often the worst place to decide who will care for children and when. There is general agreement that mediation is a better alternative and it can have more lasting results. Mediation can play a central role, by helping to switch the culture from an adversarial one to an approach that emphasises the need for agreement, for the children's sake primarily".[141] Nagalro (the Professional Association for Children's Guardians, Family Court Advisers and Independent Social Workers) noted that 70% of those using state funded mediation reach an agreement, and 59% thought they could negotiate further changes themselves.[142] The In-Court Mediation for Family Disputes Research and Evaluation Report[143] found that 73% of those who underwent an assessment for mediation went on to participate in mediation, with 71% who participated either reaching a full agreement or narrowing the issues in dispute. Gingerbread told us that:

In Australia, around two fifths of participants in [family dispute resolution] or mediation said they had reached agreement as part of the process. Just under a further third of those said they later went on to sort out arrangements or were in the process of doing so.[144]

128. National Audit Office (NAO) research in 2007 found that on average mediation cost £753 and took 110 days, while court cost £1,682 and took 435 days.[145] In supplementary evidence, the MoJ supplied us with different figures, saying that "mediation is often cheaper than going to court—data from Legal Aid cases show the average cost per client of mediation is £535 compared to £2,823 for cases going to court."[146] Mediation can save the costs of Cafcass, the judiciary and the court system, as well as the cost of legal aid. In addition to the cost savings, Families Need Fathers stressed the importance of the shortened time-frame for mediation saying that: "it can minimise the opportunities for warring parents to use the courts to ensure that a child sees little or nothing of their ex-partner for long periods of time, often damaging the child significantly."[147]

129. While the evidence we received was widely supportive of the greater use of mediation, witnesses also drew our attention to some of the less favourable evidence about the longer-term effectiveness of mediation. The evidence for mediation is complicated by the fact that mediation is voluntary. Parents with a better relationship are more likely to mediate, and more likely to reach an agreement. The trials that we examine below did not involve control groups, and it is difficult to find comparable data for non-mediated couples.

130. A 2006 Department of Constitutional Affairs report looked at three different types of in-court mediation and found that court mediation produced more agreements but parents were less satisfied with the agreement and process:

Consistent with previous research, the overall agreement rate was very high, with 76% of parents reporting a full or partial agreement. [...] The model, and not the characteristics of the case, determined the agreement rate..[...] Overall, only 62% of parents were satisfied with the agreements they had reached.[148]

131. The study also followed up the families after six months. It found that:

At follow up only a fifth of agreements had not worked at all, most agreements were intact or had been extended, most cases were closed with low relitigation rates, many more children were having increased contact, more parents were satisfied with the quantity and quality of contact and parents and children were doing better than at baseline. [...]Despite these successes there are some significant problems [...]Parental satisfaction and parent and child wellbeing did improve from baseline to follow up, but overall levels remain low. Only 59% of parents whose cases were closed were satisfied with arrangements.[149]

132. The 2006 cohort were followed up by a second 2007 study two years after mediation. It noted that things has deteriorated:

A majority of parents had required further professional intervention and 40% had been involved in further litigation since baseline. About 60% of baseline agreements had been dropped, or had broken down, by the two year follow-up point. Changes in baseline agreements appeared to be due to one or more of the adults or children not supporting the agreement, rather than an adaptive response to changed circumstances.[150]

133. The study found that the mediation process did little to resolve underlying conflicts between parents or improve their ability to communicate—with the consequence that, despite contact taking place, child well-being had not improved from initially poor levels. However, without having comparable data from court cases it is difficult to know if court would have produced better or worse outcomes for these families.

134. The 2007 NAO study noted that the agreement rate between publicly-funded mediators varied considerably. Among the ten firms of mediators doing most work for the Legal Services Commission (LSC), each of which had undertaken more than 300 cases between October 2004 and March 2006, the proportion of cases failing to reach agreement ranged from 22% to 52%.[151] Both high and low rates of agreement can be a concern: too high a rate could suggest that parents are being pressured into agreements, while too low could suggest that mediators are failing to help parents reach an agreement where one might be possible.

135. In Australia there were also concerns about the longer-term outcomes of mediation. In the short term court filings had dropped by 22%: something that was "largely attributable" to compulsory assessment for mediation. However, that now seemed to be changing:

Those data were based on the years immediately after the introduction of the reforms. Informal discussions that I have had with the courts indicate that filings might be starting to creep up. There was an immediate effect after the reforms that perhaps is not going to be sustained to the same extent [...]: It takes time for people to discover that they are not agreeing and that they need to go to court. A period of 18 months to two years after the reforms doesn't allow things to unfold in families in the way that one might expect.[152]

Potential for greater use of mediation

136. National Family Mediation said that the total number of publicly-funded mediations for the period 2007-09 was approximately 13,000 p.a.[153] In 2009 there were 137,480 children involved in private law cases (some cases would have involved more than one child) as well as divorce cases not involving children. National Family Mediation said that there is little awareness of family mediation and "how it can help" among parties. LSC research in 2010 found that 42% of privately-funded clients had not considered mediation,[154] while NAO research in 2007 found that 14% of litigants were not offered mediation and would have tried it if they had.[155] Both these research projects suggested that the use of mediation could be increased simply by increasing awareness of it. National Family Mediation said that since the NAO report, growth in publicly-funded mediation has been slow. Case numbers have increased by approx 1,000 per year since the NAO report was published.[156]

137. A large number of the submissions we received were in favour of wider use of mediation. However, in almost all cases this opinion was qualified. It was widely stated that not all cases are suitable for mediation. This included the "obvious" cases of domestic violence, safeguarding concerns (discussed below), and forced marriage (where Foreign and Commonwealth Office guidance prohibits mediation), but also a range of other more subjective concerns for example:

Where there was a power imbalance between the parents;
Where one parent was intransigent;
Where there was a complete lack of trust between the parties;
Where one parent was denying all contact and was using mediation to delay the case going to court.

138. The National Children's Bureau told us that:

many cases are not suitable for mediation, for example where there has been alleged domestic violence or sexual abuse, or even where relations have broken down to such an extent that collaboration is not possible. Similarly, where contact is frustrated it is often only the court's power to intervene that can ensure compliance.[157]

139. The Family Law Bar Association supported mediation but explained when it was appropriate and how it could go wrong:

mediation will only be appropriate for partners in equal relationships which are sufficiently amicable for productive discussions to take place. Lengthy unproductive mediation can run contrary to a family's interests—prolonging the disputes, and raising tensions.[158]

Domestic violence, safeguarding and the voice of the child

Domestic violence and safeguarding

140. Many of the cases which reach mediation involve instances of domestic violence and/or safeguarding concerns. Dr Lynne Harne has carried out extensive research into the impact of domestic violence on the children of separating parents. She noted in her written submission "much [...] abuse will not have been disclosed either by the children themselves or by mothers to agencies prior to separation because of fear of the perpetrator-parent, or his family."[159] Domestic violence has also been found to have an impact on a child's desire for a relationship with the abusing parent, a finding that militates against the usual assumption that a relationship with both parents is in the best interests of the child. Dr Harne observed that:

Children who have lived with ongoing violence for most of their lives are unlikely to feel any emotional attachment to the violent parent and feel only relief that they have separated and wish to be able to live their lives without fear. Other children may have conflicted feelings, but only desire contact when they can be certain that their fathers have changed sufficiently so that they and their mothers can be safe from the violence.[160]

141. The Private Law Programme provides for a first hearing dispute resolution appointment, at which the judge, and/or a Cafcass worker, will discuss with parties both the nature of their dispute and whether it could be resolved by mediation. At this meeting the court should also have information obtained through safeguarding checks carried out by Cafcass, to ensure that any agreement between the parties, or any dispute resolution process selected, is in the interests of the child and safe for all concerned. Cafcass checks are very thorough, as Dr Harne explained in written evidence:

Cafcass officers are required to screen and make initial safeguarding checks for all parents making applications for contact or residence through seeking information from court forms (which now ask questions about domestic violence and other forms of harm) the police and children's social care services and their own records and from other agencies where necessary. [...] If risk/harm concerns are identified Cafcass officers must then advise the court for the need of risk assessment to be undertaken by Cafcass and possibly a S.7 welfare report.[161]

142. This can uncover concerns that the current partner was not aware of (for example, if one parent had convictions which predated the relationship). It could also uncover concerns that the other parent was too afraid to mention, or concerns that related to both parent which they had decided not to raise (for example, police call outs for domestic violence by one or both parents). The Practice Direction requires cases to go to a mediator before they come to court and those safeguarding checks take place. However, not all parents will share their safeguarding concerns with a mediator.

143. We asked Jenny Clifton, Principal Policy Adviser (Safeguarding), Office of the Children's Commissioner, why there were no Cafcass checks when cases were referred to mediation before they reached court:

if there are going to be more and more cases which are kept out of court through other dispute resolutions, through mediation and so on [...] there are various points at which there is a high level of concern about violence and abuse in cases which come on contested contact arrangements. We have to be sure that people who are involved in earlier stages of the process are really attentive to the safety issues for children and are experienced, qualified and trained enough to recognise that and pick those up at a very much earlier stage. I can't be confident about that as yet.[162]

144. The Interim Report does not suggest that Cafcass should carry out safeguarding checks before mediation. However, it does suggest more training for mediators in identifying safeguarding concerns and domestic violence, and that the assessment for mediation should cover these issues. The Interim Report also said that:

domestic violence should not automatically preclude the use of dispute resolution. Domestic violence varies greatly in its characteristics, and we have heard evidence that the mediation process can successfully handle some cases that involve it.[163]

We heard that in Australia they were trying mediation for families that have experienced domestic violence. Dr Rae Kaspiew told us:

The Government have funded a pilot programme that is being applied where there has been family violence. It is called co-ordinated family dispute resolution. That is quite a novel pilot that the Institute is involved in evaluating. The pilot is only just starting, but that initiative is evidence of the fact that our policy makers are in search of different models for different types of families that will meet their needs in different circumstances.[164]

VOICE OF THE CHILD

145. Some witnesses told us that the voice of the child is not always heard adequately in mediation. Doing so is complicated by the fact that the children involved in many private law cases are very young. Research by Joan Hunt on the ages of children in private law proceedings found that 46% of children were under 5 years at the date of application. This does not mean that they are too young to have a view, or for that view to be taken into account, but it does make establishing and understanding their views, or involving them in mediation more problematic.[165]

146. Article 3 of the UN Convention on the Rights of the Child requires that in all actions concerning children, including in courts of law, administrative authorities and legislative bodies, the best interests of the child shall be a primary consideration. Article 12 of the Convention gives children the right to have their views taken into account before any decision is made that affects their welfare. Involving children in mediation (or ensuring that their views are taken into account) is important to ensure that the agreement is in the child's best interests and takes account of their views. This can also be a vital factor in the success of a mediated agreement. Academic research has identified children not supporting agreements as one of the reasons why they break down.[166] Mr Justice Ryder told us about the difference that hearing the voice of the child could make:

[Parents] often forget that football is on a Saturday afternoon. They often forget that the dancing lesson is on a Wednesday night or that there is homework to be done. Their own issues completely overwhelm the child, and to hear what the child says can sometimes be very cathartic indeed.[167]

147. The Children's Commissioner told us how she felt that mediation could be helpful for children if they were involved, something she did not feel happened enough currently:

When children talk to us [...]they say, "I'm scared it is my fault." Really good mediation that could help them to work their way through, in the same way as mediation aims to help adults through the difficulties, would be another string to the bow of the family justice system. It isn't at the moment.[168]

148. Publicly-funded mediators who meet children have to have specialist training. However, not all publicly-funded mediators have this training, and therefore not all meet children. Research has shown that the extent of children's involvement in mediation varies.[169] We did not receive any definitive figures on how many mediators currently meet children. The Children's Commissioner told us that children were often not involved at present:

at the moment mediation is a very adult process. The two sides of the adult war use mediation. I am not quite sure how many mediators ever find the time or have the training to listen to the children.[170]

149. The NSPCC felt that more could be done to involve children. It recommended that:

In all "suitable" cases, mediators meet directly with children to ascertain their wishes and feelings.

Mediators are specifically trained in how to determine the appropriate extent of a child's direct involvement in mediations, and how best to ascertain children's wishes and feelings.

Further steps are taken to communicate to children that their wishes and feelings are being listened to, even if it is not appropriate for them to be directly involved in the mediation.[171]

150. The Minister told us that he thought that children might actually be better heard through mediation:

The current guidelines that mediators follow have very specific proposals for how a child should be dealt with within mediation. They very much highlight the importance of the child. Indeed, within a mediation, the mediator will engage the child in the mediation. I would go so far as to say that, from everything that I have seen, a child is more likely to be given a fair hearing in the less formal atmosphere of a mediation—which for a child is obviously very important—than is the case for a court process. Obviously, there are exceptions. If violence is involved and so forth, that might not be the case and court might be the way to go. In a normal situation, I would say that the voice of the child would be heard in just as fair a fashion, if not more so, through mediation rather than going through the courts.[172]

151. Hearing the voice of the child during mediation is vital. It is also important to ensure that agreements do not break down. We welcome that fact that LSC mediators need qualifications to meet children. However, we are concerned by evidence that some mediators do not see children. Children should be able to meet mediators or otherwise be involved in mediation and have their views taken into account, where they so wish. In cases where children have not been involved in the mediation process, steps must be taken by the mediator to ensure that the agreement is in their best interests, and that they are kept informed about what is happening.

152. There is clear evidence that mediation can be effective, with a high proportion of parties reaching agreements or narrowing the issues in dispute. This avoids the use of the courts, with considerable savings for legal aid, Cafcass and the courts service. It can also be faster and less traumatic for families. We therefore share the Government's belief that there is scope for greater use of mediation. However, in developing its policies on the use of mediation, the Government needs to recognise that: some types of mediation appear more effective than others, and it is imperative that scarce public funds are used to best effect; and mediators need to be professionally trained and know how to recognise and handle sensitive cases where there are accusations of domestic violence or safeguarding concerns. We call on the MoJ, in its response to this Report, or sooner, to spell out how those principles will inform the greater use of mediation which is it seeking to encourage.

Proposed changes to legal aid

153. The Government's Proposals for the Reform of Legal Aid in England and Wales said "we are proposing that legal aid be retained for family mediation in private law family cases, including private law children and family proceedings and ancillary relief proceedings. This will generally apply to cases where domestic violence is not present, but even in those cases where domestic violence is present, we intend to offer support through family mediation, as some couples may still be able to obtain value from the mediation process."[173] The Government estimated that 210,000 litigants in the family courts will no longer receive legal help and 53,800 will no longer receive representation. Some provision has been made for an increase in demands on mediation services: "initial analysis estimates that 3,300 more mediations might be provided, at a total additional cost of approximately £5 million."[174]

154. The Minister told us that:

We have no maximum number of mediations that we will permit...The more mediation the better as far as we are concerned and we will fund it. If someone is currently eligible for legal aid, they will be eligible, if our proposals come into effect, for mediation.[175]

He went on to say that:

I think the variation [in projected costs] is £5 million to £7 million. At £7 million, that would still be fine within our savings projections. Indeed, it is the right thing to do because this Government support mediation and support it as a form of early intervention. It is better to get to the cases earlier and deal with the problems, not least in terms of the interests of the families and children involved, with early non-conflict resolution rather than long drawn-out court cases.[176]

155. The MoJ said in supplementary evidence that the 3,300 predicted mediations and £5-7 million projected costs:

were initial assessments, based on increases in both the proportion of cases entering mediation and the proportion of those cases that reach agreement. My officials are now updating these assessments in light of consultation responses. [...]

We would expect the number of publicly-funded parties who would be willing to try mediation to be higher than the number of cases that reach agreement as some cases may not be suitable for mediation, in some cases the other party may not be willing to engage in mediation, and some clients that enter mediation may not reach agreement.[177]

Following the legal aid consultation, the Government subsequently revised upwards its estimate of the likely additional take-up of mediations to 10,000 and said this would cost £10 million, rather than the earlier estimate of £5-7 million.

156. We are concerned that the Government may not have budgeted for enough additional mediations in its legal aid proposals. With more than 200,000 people losing eligibility for legal help and representation, the Department's prediction that only 10,000 extra mediations will be required seems low (albeit more realistic than their initial estimate of 3,300). We welcome the Government's assurance that it will pay for mediation for all eligible people. However, to help manage the Department's budget we call on it to re-examine the figures and bring forward more realistic estimates.

Interim Report

Towards compulsory mediation?

157. The Interim Report is in favour of greater use of mediation. Going further than the Practice Direction, the Interim Report argues that not only should the parties have to meet with a mediator for an assessment but they should then have to attend a Separated Parents Information Programme.[178] Those who do not wish to mediate will need to return to the mediation assessor to obtain a certificate to enable them to apply to court.

158. The Interim Report says that:

Where a mediator considers that one parent is using the assessment and information process to extend and delay proceedings, to the detriment of the other parent and possibly the child, the mediator would issue a certificate for court under a general heading of the kind allowed in Australia.[179]

The exemptions certificate in Australia covers issues such as:

a) a history of family violence (if any) among the parties;

b) the likely safety of the parties;

c) the equality of bargaining power among the parties;

d) the risk that the child may suffer abuse;

e) the emotional, psychological and physical health of the parties; and

f) any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.

159. The Interim Report does not seem to be completely clear about whether parents can choose not to mediate. On one hand it says parents can ask for a certificate because they "do not wish to mediate" but then the reason given for a mediator granting that certificate seem quite specific. In part that would depend on the guidance given to mediators as to where one or both parties wanting to go to court would qualify as "any other matter" under section (f). The Interim Report states that:

[We] would anticipate that only those cases where an exemption is raised by a professional based, for example, on welfare concerns, would proceed directly to the court process.[180]

However, it then goes on to acknowledge that "attendance at dispute resolution cannot be compulsory, unlike the assessment [...], but the aim must be that this becomes normality."

160. The Interim Report is walking a fine line between strongly encouraging the use of mediation, and making it compulsory for those who do not qualify for an exemption. Given the mixed evidence around the effectiveness of mediation, especially in difficult cases, we cannot support it being made compulsory. We call on the Family Justice Panel to clarify that while attendance at Information Meeting or Assessment for Mediation sessions and a Separated Parenting Programme should be compulsory (with some limited exemptions), all parents should be free to apply to the court after those have taken place.

102 Judicial and Courts Statistics 2009 Back

103 Q 272 Back

104 The 'Baby Peter effect' and the increase in s31 care order applications, Executive Summary, Cafcass, 2009 Back

105 Q 323 Back

106 Ev 200 Back

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111 Ev 180 Back

112 Using Family Group Conferences for children who are, or may become, subject to public law care proceedings; A guide for Courts, Lawyers, Cafcass and Cafcass Cymru officers and Child Care Practitioners. Developed by the Family Rights Group in consultation with the Family Group Conference Network. Endorsed by Cafcass and the Family Justice Council, October 2008. Back

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