Monthly Archives: December 2014

Private judging in children cases

Teertha GuptaTeertha Gupta QC considers new developments in out-of-court dispute resolution in children matters

Unlike some of my Creative Divorce colleagues, I practise exclusively in children’s matters – both domestic and international cases. I also sit as a part-time judge. We children lawyers have watched with interest as arbitration in divorce finance cases has taken its place in the non-court dispute resolution landscape. There has been an interesting debate, which is still ongoing, about whether it should be possible to achieve a binding resolution about children’s arrangements without involving the court. However, I believe that there needs to be a framework for parents who can’t agree between themselves what is in their children’s best interests to have access to a procedure that is more flexible, yet still as final, as using the court. That is where early neutral evaluation (‘ENE’) – also known as ‘private judging’ – is starting to come in.

In an ENE process, the parents agree to instruct a highly-experienced lawyer, often a QC or retired judge, to consider each side’s point of view and any independent evidence, and state his or her view (‘evaluation’) of the likely decision a court might make. Similarly to arbitration in a financial matter, the process for getting to the evaluation can be flexible, and it is possible for the parents and their lawyers to devise the procedure that works for them. It is likely that most evaluations will follow an equivalent process to that which lawyers are used to when addressing children’s issues in court. However, unlike in court it is possible to fix hearings and other dates for the convenience of the family involved, enabling a speedier resolution of matters which also may help keep costs down, and to keep matters entirely confidential.

To make the evaluation binding, the evaluator’s decision must be converted into a consent order. Of course, it is essential that the parents have already agreed that they will accept to be legally bound by the decision of the evaluator, whatever that is. There is no route for appeal from the decision of an evaluator if one side disagrees with it, although it is likely that there would be if the process were found to be flawed. We expect that a court will uphold an evaluator’s decision if it follows a recognised process where the objective is to achieve a fair result from an impartial expert. However, the court will have to consider the details of any consent order to ensure that it is in the best interests of the children involved before approving the decision made.

The first binding ENE was completed in July 2014, and involved two QCs presenting evidence on behalf of the parents involved and a retired judge as the evaluator. There were a number of different questions to be resolved for these parents, who had initially issued proceedings in court. The court agreed to appoint an evaluator as a single joint expert within the context of those proceedings, and to record on the face of a court directions order that the parents agreed that the evaluator’s decision would be final and binding upon them. It resulted in a consent order, which was approved by the court and now takes effect as any other court order would.

It is likely that ENE will become more popular and accepted in the years to come. I for one welcome this new development that sees more families having the ability to resolve their children’s arrangements without recourse to the formal court system and I look forward to its growth as a good thing for both parents and children.

The first meeting with a family lawyer

Debbie-ChismDebbie Chism explains what happens when someone comes to see her for the first time.

When people come into my office for the first time, whether or not they have instigated the family change they are now seeking to make arrangements for, they tend to feel that the world around them is spinning out of control. Often, the elements of a carefully ordered day-to-day existence have been thrown into total confusion. It can be difficult to know where to start and there is anxiety about what the outcome might be.

The first thing that I do, as a family law solicitor, is to listen. It’s essential for me to understand what is important to them and what their unique concerns are so that I can help him or her in the most effective way. I need to start developing the essential trust between us so that we can have a close, constructive working relationship for as long as it takes to make the necessary arrangements for the future.

The next thing I tend to do is to set out the various options for how we can move forward to get things sorted out. In some cases, the only sensible option is to go to court straight away, for example if it is necessary to get the court’s protection for adults or children who might be harmed, or property that might be disposed of. However, in most cases, court is neither the only option nor the one most likely to yield quick, tolerable and cost-effective results. Collaborative law, or mediation, can provide other routes to lasting arrangements that work better in the interests of the family as a whole.

When you come face to face with divorce, and control seems to have slipped from your grasp, collaborative law is a process that puts your own goals and aspirations at the heart of the discussion. It gives you that control back, and facilitates your working as a team with your collaborative lawyer, your spouse or partner, and their collaborative lawyer as a team. The aim is to get to a solution that works as far as possible for everyone involved, focussing on the matters that the clients themselves feel are their priorities which may be a very different proposition to the issues central to the strict parameters of the court process. Where there are children involved, through discussion and negotiation it is often possible to achieve practical outcomes that ensure their interests are safeguarded and that they feel secure and reassured, while working to establish a new relationship as constructive co-parents.

It’s so important, at the start of the divorce process, that each individual makes an informed choice about what they want to achieve, and how to get there. What happens in the early stages is incredibly significant in setting the tone and course of what happens during the process itself. The more information you have, the better able you are to decide the right road for you. More and more clients come to me asking about collaborative law. Although it is not appropriate in every case, where it works it can give people back that feeling of control that may have been lost at the start of the journey, and I thoroughly recommend that anyone feeling ‘at sea’ and not wishing to be compelled to take decisions dictated by the court process should consider the collaborative process as an alternative to the traditional way of working through divorce arrangements.