Removing harmful language from family separation

The Law Society Gazette has reported on the ongoing work of the Family Solutions Group, chaired by our partner Helen Adam, to remove harmful language from family separation.

Helen says ‘It’s shocking that harmful terms like “custody” are still commonplace in our society and the media, despite every effort to remove them. The “fighting talk” so often used in the context of family separation sets parents against each other, escalating family problems and putting children at risk. A “custody battle” suggests a tug of war between parents for the control of their child, with parents pulling against each other. Not only is this 30 years out of date, but it’s harmful to children, unhelpful for parents and ultimately damaging to society.

‘In these days of increasing awareness of the impact of language upon minority groups, it is extraordinary that there is such a blind spot over the impact of language on families who separate. The simple truth is that fuelling aggression and battles between parents increases the risk of harm to their children. Our language should reflect a problem-solving approach rather than stoke the fire of a battle.’

Read the full article here:

https://www.lawgazette.co.uk/news/custody-carer-client-family-lawyers-identify-harmful-words/5115671.article

Three cheers for Baroness Shackleton

Three cheers for Baroness Shackleton ‘Reform of MCA 1973 is urgently needed’.

 

I was delighted to hear Baroness Fiona Shackleton, that doyenne of family litigation under the MCA, saying this on Radio 4’s PM Programme on 20 March 2023:

“The reality is that certainty stops litigation in a way that uncertainty encourages it.  The law is too uncertain as it stands today, 50 years down the line.  That’s the problem. It needs urgent action.  Not a Law Commission like the pre-nups, which still sits on the stocks not enshrined in law.  It needs to be enacted, and it’s urgent.”

This crisply encapsulates a problem horribly familiar to family mediators and divorcing couples. The law is uncertain. Lawyers therefore have space to take very different views about the same case.  Too often, couples who are working their way to a reasonably peaceful deal in mediation come to a juddering halt because one solicitor says X and the other solicitor says Y, and the law allows them both to say that their view is a possible outcome, even though X and Y are simply miles apart.

Sure enough, this cropped up for me in a supervision with a mediator this week, where the same familiar story was told.

The case involved a couple in their 30s, a 10 year marriage, and two children under 8.   He earns around £100,000 net; her income since the children arrived is around £10,000.   They own a house with equity of £600,000 and £300,000 mortgage.  Not much in the way of savings or pension.    He has moved out and is living with a new partner.  She remains based in the home.

Notwithstanding the potential for emotional upset, these two are determined to end things well between them.  They see the long future ahead as parents and want the best for their children. They’ve self-referred to mediation.  Both say at the outset ‘We really want to avoid conflict; we just want to sort this out sensibly’.

They work well with the mediator.  Arrangements for the children are agreed, Form Es are exchanged and a constructive discussion about financial disclosure takes place.   The mediation moves into the next stage, to look at housing options for them.    He doesn’t want to disrupt her or the children and is not rushing for his stake in the house; they talk about a Mesher arrangement as a possible option.

Quite properly, the mediator explains that they may wish to get independent legal advice at this point.   We want our clients to engage with confidence, and supportive legal advice in the background should be helpful.

I say ‘should’ be helpful, because in any half decent society it would be helpful.  Sadly, not so under the current law in England and Wales.  The wide-reaching judicial discretion under the MCA means that they inevitably get different legal advice and this sets them apart.

In this case, she is told it’s in her interests to sell the house, that she’d get 80% of the equity.    ‘My solicitor told me categorically that I’d get 80%’.   He is outraged and thinks she’s consulted one of those nightmare solicitors who wants ‘to take him to the cleaners’.  His solicitor (no doubt very sensible, in his mind) has told him that it would be a 50:50 split of the equity.   They also had differing advice on the level and term of spousal maintenance.   Both have paid good money for their legal advice; quite properly both want to trust in their own solicitor.

If you, the reader, are now immediately analysing the two sets of advice to work out ‘which is right’ then STOP!   The point is not which lawyer is right, the point is that this system is a nonsense.  It creates havoc for decent people who want to separate on decent terms, and who want to put their children’s welfare first.    As becomes evident at the next mediation appointment, the stress caused by their different advice is spilling out into bad feelings between them; the easy flow of child arrangements is becoming fractious.

Where does this leave the solicitors?  They’ve done their duty to their clients, advising in their best interests.  They owe no duty to the two clients together as parents, nor to the children in the family.    If they’ve been bold in their advice, the unpredictability of any judicial outcome means they’d be safe from any successful negligence claim.   In practice, this leaves them unaccountable.  They will promote ‘Dispute Resolution’ options, without perhaps seeing the irony of attributing a ‘dispute’ to a couple who had none before they were consulted.

Where does this leave the clients?  Confused.  Stressed.  Annoyed with the other’s solicitor and with each other. Unsure.   Their initial goal of sorting this out sensibly is disappearing into the distance.  This is all going to be more difficult, more costly and more acrimonious than they’d wanted.

And the children? Nobody could fail to see the likely ripple effect out to them.  Hopefully their parents will get the help they need and come to a resolution before things unravel any further.

So we come back to the mediator.   The mediator has seen this scenario more times than they’ve had cooked breakfasts.  It is a continual and unwelcome dynamic in any finance work with couples who divorce.   The mediator is similarly annoyed and disheartened.  Not with the clients, nor (necessarily) with their solicitors.    For the umpteenth time, an antiquated law which is not fit for purpose and the unpredictability of judicial outcomes has scuppered another family’s good intents to be civilised and decent.    The mediator will work hard at reframing, reality-testing and other good mediator skills, to  restore the child-focussed goal the clients both expressed at the outset.  The mediator may still get them over the line to a settlement, and it will be marked in the data sets as a tick, a financial order made by consent.  But the wretched law will have taken its toll, impacting the family narrative for years into the future.

The mediator will try to help the clients see that the people at fault here are not the solicitors; it is the successive governments who don’t listen and don’t care about the harm done to many millions of families over the years by the MCA judicial discretion.

So three cheers to Baroness Fiona Shackleton and to any other Parliamentarians who are taking up this cause.

National Mediation Awards 2022

We are so proud to announce that Helen Adam was the deserving winner of Family Mediator of the Year and Child Inclusive Mediator of the Year at the National Mediation Awards 2022. Sir Andrew McFarlane, President of The Family Courts and Head of Family Justice in England and Wales said:
“Helen’s clear and unshakeable professional goal is to represent the voice of the child alongside the parents with whom she works. Her aim is always to support parents, where safe to do so, to handle their separation in a way which leaves them able to cooperate as parents for years into the future, to the lasting benefit of their children.”

What happens when your ex won’t come to mediation?

A common theme that arises when talking about the process of mediation is what if one person won’t go, or if that person doesn’t stick to what has been agreed?

The hope in mediation is that people are given the chance to explain their concerns and needs to each other in the presence of a professional mediator.  Whilst mediators cannot insist upon both people attending they do however have the opportunity of meeting with each person separately at the outset for a private meeting where the situation and any concerns can be discussed.  It is common that clients can have a change of heart about the option of a joint session of mediation once they have met with a mediator in a neutral safe space and voiced their concerns as well as hearing about the benefits of the process.

It is important to remember that mediators are neither judges nor legal advisors; instead they are neutral, independent, specialist professionals who help clients to have a difficult conversation and find their own way forward.  An important part of mediation is the involvement of other support around a couple where needed.  In mediation a safe and informed process is offered, giving clients the opportunity to be heard and understood, and to reach their own agreement(s).  It is a future-focused process, offering a fresh opportunity to draw a line in the sand and find a new way forward.

In relation to issues regarding children, clients are supported in agreeing a set of arrangements which can be set out in a parenting agreement, offering clarity and structure with regards the future and what has been agreed.  At Wells Family Mediation we also actively encourage Child Inclusive Mediation, which gives children the opportunity to have their voice heard as a part of the process.

We also encourage clients to return if issues arise and the door to mediation remains open in the months and years ahead.  In our experience, parents who have engaged in a full mediation process in relation to their children, will move ahead with sticking these arrangements.

Mediation also deals with legal issues around the finances and at Wells Family Mediation we encourage our clients to seek legal advice at an appropriate stage in the mediation to ensure they are fully informed about their position and they can use mediation as the place to discuss the issues and reach agreements. We have close links with excellent family solicitors who can also assist with the proposals being straightforwardly turned into legally binding documents.

At Wells Family Mediation we are here for our clients and their children; to listen, to signpost, and to support them to find their own solutions for the future.  We provide a safe and neutral space to work together with your ex in moving on from the difficulties of the past.

Jane Kerr

FMC accredited Family Mediator & Child Consultant

Warring parents face penalties for clogging up family courts

The President’s recent call for ‘a better way’ in his Jersey speech must also apply to our journalists.

This is exemplified by a recent report in the Sunday Times headlined: ‘Warring parents face penalties for clogging up family courts’.  There were similar references in The Times and The Mirror.

As it happens, the news item being reported was progressive and positive; the Lord Chancellor is to  encourage greater support for families to resolve issues where safe to do so without recourse to litigation.  However, the manner of its reporting was the opposite.  The headline promotes an all-too-prevalent harmful approach to the reporting of issues around family breakdown.  Language matters.  The way we reference the problems faced by families who separate has the capacity to influence child welfare and is therefore of paramount importance.

First, the headline used a battle metaphor, of warring couples, both inappropriate and potentially harmful when referencing parents.  Children need their parents to cooperate wherever safe to do so, and we should not use language or attitudes which promote an expectation of battles and wars between parents after separation.

Second it suggests the parents are the problem, the ‘warring parents’.  In truth, these are families in crisis, with fallouts that they can’t handle and sadly, for many, the only known and affordable option is the family court.   If they were given information at an earlier stage, access to a separated parenting programme, support to focus on their child’s needs, and an invitation to alternative processes such as mediation, then many fewer would be turning to court.   With our adversarial language and the only visible provision being the open door of court, it’s no wonder that we end up with parents turning to the one service they know, the family court.

Thirdly, it promotes a ‘stick’ approach via penalties, when in fact the ‘carrot’ approach would be far better.  Coming alongside parents soon after breakdown and encouraging them to resolve issues away from court for their and their child’s benefit would be a more constructive approach.  The stick approach will force angry parents into mediation who don’t want to be there.  The stick is much less likely to lead to a successfully mediated outcome than the carrot, where parents choose mediation themselves.

Finally, and perhaps most significantly, the headline presents this as a problem for the courts, being ‘clogged up’, rather than anything to do with child welfare.   As is so often the case, the problems facing the family justice system are invariably reported as problems for the system, with little or no reference to the problems caused to the children of families in crisis.

Dominic Raab is quoted as wanting to ‘spare children the trauma of seeing their parents fight it out in court’.  It says he has commissioned proposals and the article refers to incentives, as well as disincentives.  Let’s hope they are sensible and centred on child welfare, rather than blaming parents for creating a problem in the system.

A much better headline would have been “Early Support Needed for Families in Crisis”.

Extension to FMC Voucher Scheme

We are pleased to let you know that the Ministry of Justice has made a further £800,000 available to the FMC to distribute in family mediation vouchers.

Jane Kerr, one of the WFM partners, was quoted in the following Telegraph article:

 

First published on 28 August 2021

  The Telegraph 

More couples paid to divorce out of court to avoid battles

Ministry of Justice scheme that provides £500 for people to arrange independent mediation will double in size

by Charles Hymas HOME AFFAIRS EDITOR

A GOVERNMENT scheme that pays couples £500 to divorce out of court has been so successful that ministers are to double its size.

Robert Buckland, the Justice Secretary, has authorised a further 2,000 couples to be paid the cash to go to mediation rather than court in a bid to avoid irretrievably fracturing their families.

The tax-free vouchers are designed to help separating couples resolve their difficulties amicably rather than go through potentially damaging court battles.

The extra money of nearly £1 million will enable them to pay for mediation where they can agree custody and contact with their children, share out their assets and agree maintenance arrangements. The scheme started in March, with early results showing three quarters of those who participated avoiding court through mediation. About 130 couples a week are now getting the vouchers.

The move is part of a major shift in approach by the Government after ushering in no-fault divorce laws to make separation easier and less traumatic.

The Ministry of Justice also believes the scheme will help reduce pressure on the courts caused by backlogs built up during lockdown.

Divorces have hit a seven-year high and are expected to increase following the family tensions fuelled during lockdowns. There were 107,599 divorces in 2019, up 18.4 per cent from 90,871 in 2018 and the highest since 2014.

This has led to about 50,000 children being involved in court custody battles between their parents.

Although traditionalists have criticised the Government for not doing more to keep families together, ministers say mediation will spare children increased family conflict, which research by the University of Sussex found has a long-term impact on their mental health and development. Speaking to The Daily Telegraph, Lord Wolfson QC, the courts minister, said: “Hundreds of separating couples have already benefited from this scheme – resolving their disputes without the need for an often lengthy, costly and emotionally taxing court process.

“This additional funding will allow even more families to access these services, while helping to lessen the pressure on our family courts as we build back better from the pandemic.”

In one case, the parents of a three-year-old boy were able to avoid days in court by using the scheme to agree on future arrangements. The parents did not trust each other and were sceptical about mediation but used it to resolve their differences, leaving the child with parents still talking to each other.

Praising the scheme, Jane Kerr, an accredited mediator, said: “The two cases I have worked on over the last few months were clear examples of families who were in crisis, amid messy separations and who left mediation on a firmer footing with regards to their co-parenting relationship and having worked out practical arrangements.”

Voucher Scheme for Mediation

WFM are excited to announce the news that the government is investing £1m in family mediation, to support families to resolve issues relating to children.

Under the “Family Mediators Welcome Government Voucher Scheme” the Ministry of Justice will provide contributions of up to £500 per family, to resolve issues relating to children following parental separation.

The hope is that the fund will reduce the costs of mediation for at least 2000 families and help separated families agree solutions that are best for their children, taking into account what is going to be important for them as they grow up.

Family mediation is a proven cost-effective way to resolve differences following separation. This voucher scheme will make it even more accessible, and will help families resolve issues for themselves, without having to go to court.

Do get in touch with us today on 01892-506906 to find out more about family mediation and whether you could qualify for help.

Further information about the scheme is available at: https://www.gov.uk/guidance/family-mediation-voucher-scheme

Co-parenting at Christmas

Christmas 2020

As Christmas approaches with the added uncertainties of extra restrictions and the world in chaos, we are very aware of what a difficult time this can be for separated families.

This year will be a little different than other years and separated parents may well be feeling more of a sense of isolation than they have in other years.  With less ability to meet up with friends and family, feelings around not having the children, will be heightened this year.  Clients that we work with us in mediation describe the feelings of loss of not being together with children and as a family.  If this is your first Christmas apart, focus on the fact that it is the last time, that it will be the first time – next year will feel a little easier.  It can be useful to plan some nice things to do, this year Zoom meet ups, walks in the park or country side, a list of films you have been meaning to see, planning and cooking a new recipe….

Planning is key with regards arrangements for the children across the Christmas holidays.  If you can sit down with your ex, or pick the phone up and have a discussion around what would work best for the children and the two of you in this period, then this would be ideal.  In mediation we help clients around communication and usefulness of aiming for a polite business like style of interacting.  Rather than dictating to each other, invite suggestions, negotiate and try to keep emotional language out.  Try and focus on each having quality down time with the kids, children often express preferring this as oppose to carving up the important days and feeling hurried or travelling back and forth.  What will work for each family will be different and need discussion. Children of all ages welcome the idea of two Christmases and for younger children, that Father Christmas visits children who have two homes, twice!

Clients in mediation work together in organizing the Christmas and New Year period and they all do different things.  Common for separated couples is the idea of alternating Christmas and New Year on a year by year basis.  Or, switching Christmas eve and Christmas Day one year, for Boxing Day and some time after, the following year.  What is key in all of this, is the way in which the two of you work together in organizing a set of arrangements that work for you and the children.  If you are both on board and sharing positive messages with the children, then they will have a great time and feel free to relax and enjoy this time with each of you.

The giving of presents can be another area that can cause issues to arise.  The first year apart, some couples choose to meet on Christmas morning and share in the purchasing and opening of presents with children.  Whilst this is an understandable desire, it is important to be mindful of your ability to be amicable and make this a positive experience for the children.  If you are wishing to buy joint presents, then this needs discussion and planning. If you are buying your own presents then it can be useful to let the other know what you are planning to get and again to work together around this.  A ten year old I saw in mediation some time ago, shortly after Christmas, had been bought the same longed for present by both parents.  They had fallen out heavily about this and he had witnessed their anger towards each other.  His words, “I wish I hadn’t got any presents at all this year – I haven’t even looked at them”.

We as mediators do recognise the emotional and stressful time that Christmas can bring for parents and children with two homes. Make sure you take time for yourselves and work together as best you can to prioritise making the time you each have with the children, as stress free and relaxed as possible.  Children won’t remember how many days or hours they spent where, or who got them which present – they will focus on close family time with each of you.

We know it takes bravery and courage to co-parent positively and we also know that your children will thrive because of this.

Here’s to a happy and healthy 2021.

 

Jane Kerr

Accredited Family Mediator and Child Inclusive Consultant

Wells Family Mediation

Avoid Courts to Lessen the Pain of Family Break-Ups

First published in The Times

12 November 2020

Helen Adam, Charlotte Bradley 

We need to move away from legal disputes for separating families to help to build better relationships and cause less harm.

Society’s approach to divorce and separation has to change.

The family court is stretched beyond its limits by vast numbers of separating parents who disagree about the care of their children. More significantly, our adversarial legal system is a blunt instrument for families going through vulnerable periods in their lives.

A report published today by the Family Solutions Group calls for a rethink. The group was set up in January by Mr Justice Cobb with a remit to consider the needs of separating families before they turn to court. It argues that family law issues — particularly those involving children — must be approached differently from other legal disputes.

First, a legal response to parental disagreements over their children is inappropriate for many, and actively harmful for some. Many disputes about children flow from unresolved emotions caused by the circumstances of relationship’s breakdown. These are relationship issues rather than legal matters. The report suggests a move towards a child-centred, relational approach.

Second, research is clear that parental conflict harms children, affecting their long-term mental health and future life prospects.

Too many children are silent victims of our legal system, with childhoods lived against a backdrop of family conflict. In the vast majority of cases children have no voice in the process.

Today’s report calls on the government to establish a family minister to co-ordinate policy and provision for separating families, beyond the administration of justice.

It advocates public education to reframe our cultural response to family breakdown away from an adversarial legal environment towards a child-centred, relational approach.

Too many parents who separate on difficult terms expect to fight over their competing “rights”, rather than co-operate over their shared responsibilities.

Too many children are silent victims of our legal system. And the report recommends a range of other reforms, including improved information and support for children, with those deemed old enough being consulted on decisions that will affect them.

The report calls for early triaging with parents to assess needs and direct them either to a “safety pathway” for vulnerable families who need access to the family court, or to a co- operative parenting route away from court to promote a long- term parenting relationship. This is not easy for many separating parents. Hence the further recommendation that parents access a holistic range of support from therapists and mediators alongside legal services to help them to resolve issues together.

Compulsory training for all those who practise family law is crucial because it will raise awareness of the psychological implications of separation on parents and children, and the risk of harm that parental conflict has on children.

The report’s recommendations also call for the code of conduct of Resolution, a family law organisation, to be applied by all legal practitioners. All lawyers must acknowledge the impact our conduct has on separating families. At the end of a case, how often do we consider the state in which we leave the parenting relationship and whether parents will manage co-operative parenting in the future?

Today’s report is ambitious — but significant change is needed to give better results for families.

Helen Adam, a mediator and former solicitor at Wells Family Mediation, chaired the committee that produced today’s report; Charlotte Bradley, the head of family law at Kingsley Napley, was a member of the committee

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