Mediation is voluntary, confidential, facilitates the parties to come to their own agreements and settlements. Whilst this may be an ideal scenario for private children law disputes with no involvement of social services or any child protection or safeguarding concerns. However, can it ever have a place within public law proceedings?
Tentatively, yes it can. Having experience of mediating cases where there are applications for care orders before the court, where there are disputes about SGOs or contact disputes I can say that in some cases mediation really does work.
As a solicitor who has been involved in public children law since a trainee solicitor, a children’s representative member of the Children Panel for over 10 years I have a real understanding of what public children law really means.
Mediation can have a part to play, so long as everyone involved really understand the legal framework of public law, that the limitations of mediation are not overlooked and that the safety and welfare of the child are truly paramount.
The 26 week timetable, the reduced use of experts, the increased financial pressures will challenge everyone involved in the field. Mediation is not a panacea. If considered, the basis on which it can be used must be thought through. Issues around safeguarding, confidentiality and the specific purpose of the mediation must be clear.
A ‘family dispute’ for the purposes of falling within the scope of legal aid for mediation is set out in Schedule 1 Part 1 paragraph 14 of the Act. This limits the scope of Family Mediation to assisting in the resolution of family disputes about legal rights and duties whether or not proceedings have yet been issued. This applies equally in both private law and public law children matters.
Public funded mediation through legal aid is not therefore available to provide support to the client(s) in respect of other more therapeutic services…
Where mediation is being proposed to address these latter issues that are more therapeutic in nature and which aim to prevent the need for the local authority to bring proceedings, then it is considered that this falls within the Local Authority’s duty of care for children under the Children Act 1989. Every local authority must protect and promote the welfare of children in need in its area and it is obliged to work with the family to provide support services that will enable children to be brought up within their own families.
Case studies are then provided to illustrate the points made.
Mediation should also be considered when issues arise around Special Guardianship. Regulation 3 of the Special Guardianship Regulations 2005 are quite specific in facilitating the use of mediation to ensure continued relationships and contact.
Mediation may also have a role within the new Public Law Outline. If proceedings are to be managed within a 26 time frame it will be essential that new ways of seeking to resolve matters in the child’s interests are considered.
Mediation may enable disputes within families to facilitate resolution and agreement between family members who may put themselves forward to care for the child. We know that often grandparents, aunts and uncles may have concerns about being ‘disloyal’ to the parents, who hold back until the last moment to be assessed or considered. Mediation offers a real possibility of an expedited solution and to narrow key issues of dispute.
Long term foster placements, or even adoptive placements with contact, may benefit from mediation to resolve issues, for the children and the adults. Mediation need not necessarily be face to face which can lessen the anxiety for participants.
As the impact of the lack of legal aid for extended family members becomes more and more apparent in court and in life everyone who is concerned for family justice need to find alternative ways to ensure that the real voices of those who are affected are heard.
Facebook and social media have changed the adoption landscape, contact between children placed long term with alternative carers and birth parents and families cannot be so easily managed. Mediation can have a role in protecting placements by facilitating communication. The mediator’s role as independent, non aligned 3rd party is pivotal in this particular area.
Local Authority Social Care teams are always overworked. The changes to legal aid will only increase this pressure. The limit on resources means that new ways of managing children’s needs must be considered by practitioners. The increase of litigants in person in the courts can only mean that more families will turn to the LA, or that more reports will be ordered by the courts to try and manage cases from the courts perspective.
A recommendation to try mediation, or to ask that the court considers directing mediation could be an outcome to resolve cases from the participants point of view.
Before considering mediation for any case with a public children law element, it is essential to discuss this with the possible participants, and possibly the court, to see if it is potentially viable and to agree issues around disclosure, confidentiality and who will actually be in the mediations.
Costs for mediation can also be discussed, and it offers real value for money as an outcome for everyone concerned.
Please contact me directly to discuss any potential case, and to bear in mind that for some cases, legal aid will be available. Also please see and download the factsheet for professionals and for individuals.
'The first time I spoke to John I put the phone down thinking I’d just spoken to a friend, not a solicitor that I had never met. Throughout, John communicated to me on my level and was always clear, easy to understand and prepared to explain his reasoning.'MW