Late November and December will see a seasonal rush of applications to the family courts from parents who need help to resolve the question of where the children will spend their Christmas.
The courts, at the best of times, can come under considerable pressure as they try to resolve these issues.
Unfortunately, these are not even the best of times and so that pressure will be even worse.
The courts and the legal system are already straining. Like many public bodies they are experiencing shrinking time and financial resources. That is compounded by the changes to legal aid earlier in the year which is being blamed for increasing the number of children law applications by parents who have either chosen not to, or simply cannot afford, to instruct a lawyer to represent them.
Applying to court to get an answer to the question of where will the children spend Christmas this year is only one of several options available to you and it might not be the best one.
You might find that you can resolve matters without the need to go to court at all.
There are two alternative ways of resolving Christmas contact disputes that you might want to explore instead, namely mediation and collaborative law.
Will mediation help me to sort out Christmas contact?
Mediation will see you and your child’s other parent being invited to work together with your mediator to reach an agreement on what will happen.
You and the mediator, together with your ex-partner, will likely need 1, 2 or 3 meetings to address the issues that are getting in the way of you being able to reach an agreement. Once those issues have been explored and an agreement has been reached then you have a choice about what to do next.
The mediator will record the agreement in a document called a Memorandum of Understanding. This will be a record of what you have decided to do. Some people like to have the memorandum converted into a court order and instruct solicitors to make an application to the court to have the order made by consent. This is most likely to happen where there have already been court proceedings relating to the children and where the new agreement is varying the terms originally ordered by the court. Where there have not been previous proceedings then a court is not likely to make an order if they can see that you, as the parents to the children, have been able to reach an agreement between you. This is for two reasons;
- The court has a principle of `No order.’ This principle states that if there is no real need for a court to make an order then it will decline from doing so, even if asked by one or both parents. Where parents have reached an agreement between them the courts may be slow to get involved for fear of giving that agreement a legalistic tone.
- As a result of the courts’ stretched resources it would not be surprising if there were a number of applications that cannot be heard in time for Christmas. There has been no warning from the court service in this regard but it would not be surprising to see stories merging in the national press as Christmas approaches. There are many anecdotal stories of cases over the last few months being given a hearing date only for everyone to be told the day before the hearing, or even on the day itself, that their hearing has had to be delayed. It would seem peculiar if, somehow, Christmas contact applications were immune to this problem.
What is collaborative law and can I use this process to sort out Christmas contact?
Collaborative law differs to mediation in that mediation would see you sat in a room with your ex-partner and the mediator. The mediator would work with each of you to facilitate a conversation that enables you to reach an agreement. The mediator, between sessions, would encourage you to take independent legal advice from your own lawyers. Again, the memorandum of understanding, discussed above, would be given to you with a recommendation that you take legal advice upon it.
This happens because the mediator has to be neutral and cannot therefore give legal advice to either of you. Any legal advice would need to be obtained, if you choose to do so at all, outside of the mediation sessions themselves.
With collaborative law you and your partner would each sit, with your appointed collaboratively trained lawyers, together in a room. All four of you would sign an agreement committing to collaborate, or to work together to sort out an agreement and to keep going until you do. This means that the negotiations are carried out with any legal advice available to hand in the meeting.
These collaborative meetings are very different to conventional legal meetings.
The agreement to collaborate requires lawyers – and parents – to focus on solutions and deters them from playing power games with threats or actual applications to to court to force an issue – in collaborative law, if anyone applies to court then the lawyers will no longer act for you. It is this proviso that makes collaborative law so effective. Everybody has to moderate their behaviour and negotiation techniques so that agreements are made out of dialogue rather than threats of court action.
Are mediation and collaborative law only suitable for cases where everybody gets along well?
Not necessarily. There can be an assumption that mediation and collaborative law only work when everyone is friendly but that is not correct.
Experienced mediators and collaborative lawyers have developed skills to deal with the conflict that is present between you and to move you away from conflict and towards more effective dialogue.
There does need to be a willingness to engage with either process and to do so in good faith – the participation of you and your partner is voluntary after all, unlike a court order where a court tells you what to do.
There are real advantages however in
- Greater time flexibility – pace and timing is determined by the availability and flexibility of you, your partner and the professionals serving you. In many cases that will be better than hoping the court has a spare slot in its crowded diary and then hoping that the slot remains available to you.
- Potential costs savings – the costs of preparing for and applying to the court to resolve contact can be very high, possibly stretching into thousands of pounds. By keeping the issues out of court and choosing to use mediation or collaborative law instead, you could see considerable savings, leaving more in your bank account to continue providing for you and the family not only through Christmas but into the new year as well.
- Contact is for the whole childhood, not just for Christmas – your discussions with the mediator or within the collaborative law process can be used to look at the bigger picture of contact and residence for the years ahead and not just the Christmas holidays. The courts are unlikely to have time to deal with the more substantial long term arrangements in the run-up to Christmas for the reasons set out above.