Perhaps it is easy to forget the particular family situation allows the children in the marriage to be unwilling observers to events they may not be able to understand or process but still to be participants in the drama. The law takes so long that the children then become inured to the emotional, if not also physical, violence. It took years for my then husband to agree to a divorce: then he agreed because I was entitled to half of the ensuing tax-free payment of more than £5 million, and he decided I would receive not one farthing of that money, even to the extent of lying on documents. The lawyers, Judge and every one all knew (except me) about this money, and assumed I had just abandoned my claim to it. But, a furious law student of his sent me a tiny paragraph in a local tabloid to let me know what he had done. This is just one example of how men can use and abuse the legal system in the marriage arena with disastrous effects on the children who may never recover.
Sharing a robing and lounge area with family practitioners as I used to in a Court building housing both criminal and family Courts I listened to them in rapt horror sharing the stories concerning their current cases, especially when dealing with children issues. I used to tell them how much I admired them for undertaking such traumatic and exhausting work. I would add (a little flippantly,I grant you): “Give me good, clean crime any day.”
With my (non-lawyer) daughters I am currently (as you do) advising and TRYING to guide a family friend through contact proceedings concerning the thirteen year old son of a “failed” marriage. Frankly anyone without “skin in the game” would struggle to identify quite what the (supposedly) significant difference between the adult parties was. And yet, and yet: hours of (on the whole) patient discussion and a serious two hour intervention from the first hearing Court and its seasoned and skilful “duty” CAFCASS representative resulted only in two brief, tense Court hearings and the case then having to be put off with an admonishment to both parents to a “final” (please let it be so!) hearing before a specialist family District Judge and with a preliminary order for ONE extended appointment for contact with the father.
The Court’s approach seemed to teeter on the mandatory to me- but then I have to ask myself what the two (clearly concerned) Magistrates might have done differently. I have yet to come up with an answer. (To be clear, I was there just for moral support, with one daughter as the McKenzie friend).
On mediation, a as someone involved with the first mediation scheme in Bristol in the mid-1970s, I agree with you that to force parties to mediate is illogical. Two things are logical (and surely obvious?):
(1) Mediation saves court time by helping cases to settle. Mediation therefore saves the tax-payer money (if money is your only criterion) so let the tax-payer pay more for mediation, as a service to the community, and save the pressure on our courts. Arbitration is not the answer unless you are rich or otherwise have cash to spare on more lawyers;
(2) Give family courts clear powers, which they lack now, to tell parties to pause – lawyers call it ‘a stay’ – to see if mediation works for the parties.
And transparency (family lawyer’s euphemism for open justice)? What the President of the Family Division (once pre-eminently a children lawyer) forgets, with his new pilot scheme, is that children may be affected by publicity over their parents’ court proceedings (eg names on the court doors at a basic level). See my NLJ article Progress on open justice or administrative fiat? https://www.newlawjournal.co.uk/content/progress-on-open-justice-or-administrative-fiat- on 19 January 2024. I think you may forget children too.
Children have privacy rights. Remember PJS – ‘in the entertainment industry’ – and a couple who asked if PJS would like ‘three-way’ sex? Yes please, said PJS. His reporting restriction injunction was renewed by the Supreme Court. Lady Hale commented: ‘I wish only to add a few words about the interests of the two children whom PJS has with YMA. It is simply not good enough to dismiss the interests of any children who are likely to be affected by the publication of private information about their parents with the bland statement that “these cannot be a trump card”. Of course, they cannot always rule the day. But they deserve closer attention than they have so far received in this case: … [they] have independent privacy interests of their own.’
I am afraid any reader of the Transparency Project ‘guidance’ (eg a journalist) should be wary. It is over a year old and contains a number of questionable statements (as I read it) on the law. For example, as I read Administration of Justice Act 1960 s 12(4) the pilot scheme threatens journalists much more than the President and his advisers seem to understand.
Perhaps it is easy to forget the particular family situation allows the children in the marriage to be unwilling observers to events they may not be able to understand or process but still to be participants in the drama. The law takes so long that the children then become inured to the emotional, if not also physical, violence. It took years for my then husband to agree to a divorce: then he agreed because I was entitled to half of the ensuing tax-free payment of more than £5 million, and he decided I would receive not one farthing of that money, even to the extent of lying on documents. The lawyers, Judge and every one all knew (except me) about this money, and assumed I had just abandoned my claim to it. But, a furious law student of his sent me a tiny paragraph in a local tabloid to let me know what he had done. This is just one example of how men can use and abuse the legal system in the marriage arena with disastrous effects on the children who may never recover.
Sharing a robing and lounge area with family practitioners as I used to in a Court building housing both criminal and family Courts I listened to them in rapt horror sharing the stories concerning their current cases, especially when dealing with children issues. I used to tell them how much I admired them for undertaking such traumatic and exhausting work. I would add (a little flippantly,I grant you): “Give me good, clean crime any day.”
With my (non-lawyer) daughters I am currently (as you do) advising and TRYING to guide a family friend through contact proceedings concerning the thirteen year old son of a “failed” marriage. Frankly anyone without “skin in the game” would struggle to identify quite what the (supposedly) significant difference between the adult parties was. And yet, and yet: hours of (on the whole) patient discussion and a serious two hour intervention from the first hearing Court and its seasoned and skilful “duty” CAFCASS representative resulted only in two brief, tense Court hearings and the case then having to be put off with an admonishment to both parents to a “final” (please let it be so!) hearing before a specialist family District Judge and with a preliminary order for ONE extended appointment for contact with the father.
The Court’s approach seemed to teeter on the mandatory to me- but then I have to ask myself what the two (clearly concerned) Magistrates might have done differently. I have yet to come up with an answer. (To be clear, I was there just for moral support, with one daughter as the McKenzie friend).
IS there a better way? Over to the experts!
On mediation, a as someone involved with the first mediation scheme in Bristol in the mid-1970s, I agree with you that to force parties to mediate is illogical. Two things are logical (and surely obvious?):
(1) Mediation saves court time by helping cases to settle. Mediation therefore saves the tax-payer money (if money is your only criterion) so let the tax-payer pay more for mediation, as a service to the community, and save the pressure on our courts. Arbitration is not the answer unless you are rich or otherwise have cash to spare on more lawyers;
(2) Give family courts clear powers, which they lack now, to tell parties to pause – lawyers call it ‘a stay’ – to see if mediation works for the parties.
And transparency (family lawyer’s euphemism for open justice)? What the President of the Family Division (once pre-eminently a children lawyer) forgets, with his new pilot scheme, is that children may be affected by publicity over their parents’ court proceedings (eg names on the court doors at a basic level). See my NLJ article Progress on open justice or administrative fiat? https://www.newlawjournal.co.uk/content/progress-on-open-justice-or-administrative-fiat- on 19 January 2024. I think you may forget children too.
Children have privacy rights. Remember PJS – ‘in the entertainment industry’ – and a couple who asked if PJS would like ‘three-way’ sex? Yes please, said PJS. His reporting restriction injunction was renewed by the Supreme Court. Lady Hale commented: ‘I wish only to add a few words about the interests of the two children whom PJS has with YMA. It is simply not good enough to dismiss the interests of any children who are likely to be affected by the publication of private information about their parents with the bland statement that “these cannot be a trump card”. Of course, they cannot always rule the day. But they deserve closer attention than they have so far received in this case: … [they] have independent privacy interests of their own.’
I am afraid any reader of the Transparency Project ‘guidance’ (eg a journalist) should be wary. It is over a year old and contains a number of questionable statements (as I read it) on the law. For example, as I read Administration of Justice Act 1960 s 12(4) the pilot scheme threatens journalists much more than the President and his advisers seem to understand.
You know better than that Joshua, mandatory mediation is not about "forcing parties to agree" – simply that they must engage with the process.