Supporting separating parents to resolve private family law disputes

On 22 April 2024, the House of Lords is due to consider the following question for short debate:

Lord Farmer (Conservative) to ask His Majesty’s Government what steps they are taking to support parents considering separation and to promote early resolution of private family law arrangements.

1. What happens when couples with children separate?

When parents separate from each other, this can sometimes involve making decisions about their child’s upbringing. This can include deciding where the child will live, how often the child will see the other parent, as well as certain financial arrangements. Not all separating parents come to an agreement on their child arrangements, with some choosing to apply to the family court to help resolve such disputes.

The family court can hear child arrangement cases.^[1] These are referred to as ‘private family law’ cases because they involve a dispute between two private individuals, as opposed to ‘public family law’ cases which involve the state. Parents can apply to the family court for a range of orders, including a child arrangement order (commonly referred to as a ‘section 8’ order) which determines who a child should live with and spend time with. Despite exceptions, most private family law cases are not eligible for legal aid funding.^[2] This has been the case since 2013 when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO Act) changed the eligibility criteria for legal aid.

Before applying to court, parents are legally required by the Children and Families Act 2014 to prove they have considered mediation. Parents can prove this either by demonstrating that they have attended a mediation information and assessment meeting (MIAM) with a family mediator or by showing the court they are exempt from mediation, for example where domestic violence is involved.

The family court system has experienced case backlogs, delays and issues with judicial capacity for several years.^[3] This includes delays for families and children involved in private law disputes. To help ease court demand and encourage families to resolve child arrangement disputes outside court, the Ministry of Justice launched a family mediation voucher scheme in 2021.^[4] The scheme provides eligible families with up to £500 towards mediation costs.^[5] The government recently said over 27,000 families had used the voucher scheme, with two-thirds of the first 7,200 families to use the scheme having reached an agreement without needing to go to court.^[6]

According to the government’s latest family court statistics, there were 12,566 new private law applications made to court under the Children Act 1989 in October to December 2023.^[7] This was a decrease of 1% when compared to the equivalent quarter in 2022. These new applications involved 18,758 children. It took an average of 46 weeks for private law cases to be closed during this quarter.

Whilst the number of private law applications has steadily increased since 2007, research from 2021 has shown that the use of the court system by parents remained low overall.^[8]

2. How can parental separation impact children?

Children can be affected by parental separation and conflict in a variety of ways. Emotional and behavioural problems in children have been found to be more common when their parents are fighting or separating.^[9] According to research from the Early Intervention Foundation charity in 2016, the quality of the interparental relationship had a primary influence on children’s long-term mental health and future life chances.^[10] The research report said parents who engaged in frequent, intense and poorly resolved interparental conflicts put children’s mental health and long-term life chances at risk. The researchers said children of all ages could be affected by destructive interparental conflict, with effects seen across infancy, childhood, adolescence and adulthood.

There were approximately 2.4 million separated families in Great Britain and 3.8 million children in those separated families in the financial year ending 2023.^[11] The Department for Work and Pensions (DWP) defines a ‘separated family’ as one which has one parent with care, one non-resident parent and any biological or adopted children they have between them who are either under 16 or under 20 and in full-time non-tertiary education.^[12]

3. What is the government doing to encourage the earlier resolution of private family law cases?

In January 2024, the government announced a programme of family court reforms which it said would help families to resolve disputes more quickly and protect children from long court cases.^[13] These announcements were made as part of the government’s response to its earlier consultation on ‘supporting earlier resolution of private family law arrangements’ which ran from 23 March 2023 to 15 June 2023.^[14] The government used this consultation to consider how the justice system could better support families to resolve disputes earlier and outside court.

Announcing the reforms in January 2024, the government said more than 60,000 private law cases involving children and contested finance cases were heard by the family court in 2022.^[15] It said long-term conflict between separating parents had been linked to increased rates of anxiety, aggression and depression amongst children, as well as anti-social behaviour, academic struggles and substance misuse. The government said its reform programme would help parents to reach an agreement either by themselves, with the support of professionals such as mediators or lawyers, or through the family court service.^[16] A selection of the government’s reforms are summarised below.

3.1 Measures to support families when a dispute first arises

Respondents to the government’s consultation highlighted a limited availability of information to support families when disputes arose or when separating. The respondents said this led to escalated disputes, with individuals applying to court without a complete understanding of alternative ways to resolve disagreements or of the court process. To address these concerns, the government set out various reform measures it said would ensure families could access information when disputes arose:

• It would develop an online tool for families to access authoritative information and support services, as well as providing hardcopy guidance to all families who have submitted a court application.
• The government would invest around £300mn to enable 75 local authorities to create family hubs as part of the existing family hubs programme. Currently, family hubs are operational in some local areas to provide a ‘one-stop shop’ that can help families access a range of support services, including information for separating parents.
• The government would continue to support local authorities in embedding conflict interventions in their family services provision through the DWP’s ‘reducing parental conflict’ programme. This programme sees the DWP work with local authorities in England to help parents address conflict.
• To improve the child maintenance system, the government said it would remove the £20 application fee so that families on the lowest incomes did not face additional barriers to accessing the Child Maintenance Service. This was first announced in October 2023, alongside various other improvements the government said it would make.^[17]

3.2 Measures to support families who are considering applying to court

The consultation respondents said a lack of free legal advice on family law was a barrier to early dispute resolution.^[18] To address this, the government set out various actions it was taking to ensure the court process remained a last resort when family disputes arose. This included:

• launching a free family law legal advice pilot in specific regions of England and Wales by summer 2024 to see if this could assist families to resolve their disputes earlier
• working with the Children and Family Court Advisory Support Service (CAFCASS) and CAFCASS Cymru to help more families undertake in-court parenting programmes earlier in the court process, as well as making pre-court parenting programmes the norm for families trying to reach an agreement over child arrangements

3.3 Measures to strengthen dispute resolution methods such as mediation

The government said it would strengthen dispute resolution in various ways, including by:

• investing up to £23.6mn in the mediation voucher scheme by March 2025 to support eligible families mediate issues involving their children or finances
• working with the Family Mediation Council and domestic abuse organisations to improve training for mediators undertaking MIAMs and mediation to improve their approach to identifying domestic and child abuse
• supporting more mediators to offer child-inclusive mediation by removing a barrier highlighted by consultation respondents that some mediators had been unable to apply for enhanced Disclosure and Barring Service checks

3.4 Measures to improve the court experience for families

The government set out various ways it planned to improve the court experience for those families who needed to be there. For instance, it said it would extend the ‘investigative approach private law pathfinder pilot’ to south-east Wales in April 2024 and to Birmingham in June 2024, followed by a national roll-out subject to an evaluation of the pilot’s findings. First launched at family courts in North Wales and Devon in 2022, the pilot aimed to better support victims of domestic abuse by improving information sharing between agencies such as the police and courts so that victims avoided having to retell their traumatic experiences.^[19] The pilot also aimed to boost the voice of children throughout the process by giving them more opportunities to explain how they felt.

4. What reaction has there been to the reforms?

Various organisations from the legal and family justice sectors have welcomed the government’s reform programme. The Law Society said it supported the government’s aim of improving the court system to help families resolve their disputes faster and without needing to go to court.^[20] However, it also stressed the importance of ensuring individuals could still use the court system to ensure access to justice was not compromised.

Resolution, a membership organisation for family justice practitioners in England and Wales, said it supported the government’s plans to launch an early legal advice pilot for separating parents.^[21] The organisation said it had called for public funding for early legal advice since 2013 when the LASPO Act removed most private family law cases from the scope of legal aid funding.

The Family Mediation Council said it supported the government’s plans to encourage separating families to resolve issues earlier through mechanisms such as mediation.^[22] Additionally, Jacky Tiotto, chief executive of the CAFCASS, said the organisation welcomed the increased focus on children in the reforms and supported the government’s intention to encourage more families to find alternative resolutions to family court proceedings.^[23]

5. Read more

• HM Courts and Tribunal Service, ‘Guide for separated parents: Children and the family courts (CB7)’, updated 24 August 2022
• Children and Family Court Advisory Support Service, ‘Planning your child’s time with both parents after separation’, accessed 9 April 2024
• Nuffield Family Justice Observatory, ‘Uncovering private family law: How often do we hear the voice of the child?’, accessed 9 April 2024
• Nuffield Family Justice Observatory, ‘New qualitative study on family separation shows experiences are shaped by access to support, and families often try to avoid using court’, 29 November 2022
• Nuffield Family Justice Observatory, ‘Uncovering private family law: Who’s coming to court in England?’, 2021
• Full Fact, ‘The legal system, explained: The family court’, 28 February 2017
• Early Intervention Foundation, ‘What works to enhance interparental relationships and improve outcomes for children?’, 22 March 2016

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