The Child Arrangements Programme (CAP) was designed to divert low risk disputes between separated parents away from courts and promote the use of Alternative Dispute Resolution. Despite an initial decline in the number of applicants in 2014, there has been an increase in the number of private law applications and unrepresented litigants (Private Law Working Group, 2019). This has led to unprecedented volumes of work for family court judges, with His Honour Judge Wildblood QC calling for applications to be taken to court only if it is ‘genuinely necessary’ (Re B (a child) (unnecessary Private Law Applications, 2020). Determining whether court is genuinely necessary can be complicated where there are allegations or concerns about domestic abuse or safeguarding children. The Ministry of Justice Report (2020) warns against reducing dependence on courts in these cases. The picture is further complicated in Wales as courts fall under the remit of the Ministry of Justice. Conversely, the responsibility for children and family services is devolved to Welsh Government. Such a division can complicate matters as courts may not be aware of additional child and family social care provision. For example, a child from a separated family in Wales may be eligible for more support under a Child Assessment Support Plan (Social Services Well-being (Wales) Act 2014), than a similar child in England. Development of child focused local families alliances for supporting parents in Wales must bring the family justice system and child and family social care together so that parent disagreements can be resolved through non-court based options, where it is appropriate to do so. Family courts are an inappropriate vehicle for conflict resolution between separating parents. The process can serve to escalate parental conflict with children caught in the middle. This leads to heightened risk of negative child outcomes such as poor mental health, wellbeing and lower educational attainment.
Researchers at Cardiff University have recently published a report that identifies service provision for separating families in Wales and outlines three scenarios for the development of child-focused supporting separating families alliances (SSFA). Commissioned by Welsh Government, the report contributes to what is known about the services available for conflicting parents, the referral pathways and offers proposed solutions of how to provide support to families before, during and after separation away from family courts, where it is appropriate to do so. The report draws on findings from three elements of data collection. First, a mapping exercise of service provision drawing on findings from eight online survey responses and informal discussions with six stakeholders. Second, semi-structured interviews with 22 stakeholders, including representatives from voluntary funded, social enterprises, limited companies and statutory services and a focus group with two young people from the Family Justice Young Peoples Board. Third, the report includes reference to a consultation exercise with 13 stakeholders who considered the three proposed scenarios.
The greatest source of parental conflict involved disagreements around child residence and contact arrangements. The default reaction to such disagreements is recourse to court as parents have unrealistic expectations of what the court can and should do. This reflects His Honour Judge Wildblood QC’s observation that some judges are being called upon to determine minor changes to contact arrangements such as which junction of the M4 parent’s should exchange the child (Re B (a child) (unnecessary Private Law Applications), 2020). Such disagreements can arise due to perceptions around equitable contact or financial burden serving to prolong relationship difficulties or they can be seen as a vehicle to obtain housing or financial recompense. The report considers the emotionality of relationship breakdown and the resultant difficulties in putting these emotions to one side in order to amicably resolve issues concerning the child. Consequently, issues surrounding relationship breakdown and child arrangements can be identified indirectly through existing provision such as family support or parenting programmes or directly where the parent or court may seek further support. Where parents were receiving help through existing provision, some services such as the Team Around the Family were already delivering dispute resolution with some having adopted elements of the Working Together for Children programme. This was not true of all services and so the report describes a postcode lottery in terms of what provision is available to parents.
The report reiterates findings relating to problems around Mediation, Information and Assessment Meetings (Private Law Working Group, 2020) and the relatively low take up of mediation (Cusworth et al., 2020). Findings revealed a dearth of mediators in Wales accredited to undertake MIAMs, with fewer qualified to work with children. This is a particular issue as young people identified mediation as an ideal vehicle for getting their voices heard during parental separation. Despite these difficulties, stakeholders suggested that mediation could be effective in diverting parents away from courts. The report also emphasised the role of contact centres as safe places for parents to see or exchange children as well as a neutral venue to access support such as mediation. However, stakeholders also raised concerns about the extent to which families were aware and able to afford these services.
The report found overwhelming support for the creation of SSFAs. In terms of their remit, the report found that the term ‘separating families’ is somewhat of a misnomer. In practice, parents may never have been in a relationship or may never have ever lived together. This reflects the diverse nature of children’s home environments with some families including extended family members such as aunts, uncles and grandparents and/or reconstituted families involving stepparents and additional siblings. Findings from representatives from the Family Justice Young People’s Board emphasised the need for services aimed at young people to be included as well as inclusion of young people in existing services such as mediation. This means that SSFAs must be accessible and equipped to cater for the needs of parents, carers and other members of the child’s family network as well as children and young people. In doing so, consultation stakeholders recommended that the focus of SSFAs should be upon enhancing relationships before, during and after separation. Stakeholders also recommended that seeking relationship support must become normalised, whether this is support to remain together or to part amicably. Although the report found that some parents may require support in order to identify and access help from services. Hence, there is a need for both remote and in-person delivery and where some parents or family members may require support.
The report outlined three scenarios for the development of child focussed SSFAs ranging from no additional cost, limited additional resource to significant and ongoing resource. At the no additional cost level, the report illustrates how the SSFA could be included within existing provision, the Single Advice Fund, currently being delivered in Wales by Citizen’s Advice. This provision serves as a one stop shop connecting people to the most appropriate service in a timely manner. Further this option provides both remote and in person delivery. Although the current offer would need to be extended to include mediation, contact centres, other non-court based resources as well as family support and parenting programmes. The scenario for limited additional resource involved situating the SSFA within a sister arm of Cafcass Cymru. This option is aligned with the CAP which emphasises that the court and those working in family justice services are obliged to consider Alternative Dispute Resolution at every stage of the process. Cafcass Cymru is described as an established child-friendly organisation already equipped with relevant knowledge of what mediation and family services are available for separating parents. The report outlines the creation of a separate branch, or sister arm, of Cafcass Cymru to ensure differentiation between those families who are being investigated and those who are being signposted to services. Finally, for the scenario requiring significant and ongoing resource, the report draws reference to Relationships Scotland which brings together provision of counselling, mediation, and the delivery of contact centres under one umbrella organisation. The report outlines the potential for something similar in Wales, provisionally titled ‘Relationships Wales’; an online platform with telephone helpline aligned with existing policy and provision under the Families First programme and commitment to the United Nations Convention on the Rights of the Child. Such a platform would include a bank of resources including family support, parenting programmes, mediation, contact centres and other non-court based approaches. In doing so, the report states that families would have access to a range of advice and support with parents and carers empowered to access appropriate support either through the dedicated helpline or via an online assessment tool.
This report is very timely in light of the increase in parental separation and disagreements around contact in light of Covid-19. The report concludes that the effectiveness of all three scenarios is based upon the need to embed and normalise relationship support that is both accessible and affordable. Further, it highlights that it is only when parents and carers accept and engage with relationship support that it will be perceived as a viable alternative to court.