Is court the right choice? Alternatives to consider for parents facing the family court backlog

According to statistics from the Ministry of Justice for April-June 2024, it took an average of 43 weeks for private children cases to reach a final order. This was down by two weeks from the same period in 2023, although it still significant. In our experience, the actual time that it takes for a case to conclude depends on the issues in the case (and therefore, how many hearings are required and the time required to comply with directions) as well as the court itself (backlogs in some courts are larger than others). Sometimes it can feel like a lottery, and it is often very difficult to advise our clients on how long it might take for their proceedings to conclude.

These delays can have a considerable impact on children and parents, resulting in prolonged uncertainty and adverse emotional and financial consequences. Lengthy court proceedings can also entrench positions and widen areas of dispute.

Whilst involvement of the Family Court is sometimes necessary and can play an important role in making decisions for children which promote their best interests, it is not the only option and, importantly, is not always the best.

Alternatives to Court

There are various options available to parents who cannot agree about arrangements for their children, including:

• Mediation
• Collaborative law
• Early neutral evaluation
• Arbitration

At Anthony Gold, we offer all of these options and further information can be found here.  Importantly, the alternatives to court listed above can be explored even after proceedings have been started. A common misconception is that you that you cannot, for example, attend mediation after court proceedings have been issued. Further, you are not limited to choosing only one process and they can be tailored to individual circumstances, sometimes by combining two or more processes to achieve a resolution.

When non-court dispute resolution may not be suitable

The above alternatives to court may not be suitable in some cases, for example where there has been domestic abuse (although that is not an automatic bar), or if there is an urgent matter which needs to be considered by the court. Examples of the latter include where there is a risk of one parent abducting a child to another country, or where there is an immediate threat to a child’s safety.

How to prepare if you are going to court

If you do decide to issue court proceedings, we recommend the following:

• Get legal advice early: Understanding your options before making a court application can help you decide if it is the right course of action for you and your family.
• Attend a Mediation Information and Assessment Meeting (MIAM): Attending a MIAM is compulsory before issuing a court application, unless one of the exemptions applies. The MIAM is also a valuable opportunity for you to discuss your aims and concerns with an impartial mediator, to explore whether mediation could help you and what other options are available outside of the court process.
• Gather documentation and evidence: be prepared with relevant documents and think carefully about what you are asking the court to do, to minimise delays once your case reaches court.

And finally…

Ultimately, parents will need to work together in the best interests of their children, regardless of how they feel towards each other. Litigation can sometimes cause irreparable damage which could be avoided by engaging with more constructive, non-court dispute resolution options. Mrs Justice Knowles emphasised this in X v Y [2024] EWHC 538 where she said that ‘non-court dispute resolution is particularly apposite for the resolution of family disputes, whether involving children or finances. Litigation is so often corrosive of trust and scars those who may need to collaborate and co-operate in future to parent children.’

At Anthony Gold, we have considerable experience representing parents in court proceedings, however we also offer a range of non-court services and always seek to keep matters out of court wherever possible. If you are considering making an application to court or would like to know more about your options, please do contact us and we would be happy to discuss which options might be right for you and your family.