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Parenting separately series: Options without involving the court

05 Jun 2019

When there is a disagreement regarding children, Court is often a last resort to resolve matters, and unless there are urgent safeguarding reasons, any person seeking to make an application to the Court regarding a children matter will be strongly encouraged to try to resolve the matter by other means before an application is made.  Indeed it is now part of the legal procedure for parents to have at least met with a mediator before an application can be made to the Court.

So what are your options if you and your ex-partner cannot agree on a particular matter concerning your child but do not want to involve the Court? There are three main alternatives to a Court application; these are Mediation, Arbitration and Negotiation.

Mediation is a process which you may have heard of, essentially you and your ex-partner will, with the help of an independent mediator, discuss issues regarding your children and attempt to come to your own agreement. A mediator is not able to give either of you legal advice, but can give general legal information about child arrangements and they are specially trained in resolving issues. Nicola Matthews of Hay & Kilner is a qualified mediator.

You may also wish to receive legal advice from a solicitor alongside the mediation process.  We offer an initial appointment at a reduced rate which can be invaluable before starting the mediation process. Please note however that Hay & Kilner cannot provide you with both mediation services and legal advice.  The mediator and legal adviser need to belong to different law firms. Negotiation involves either one, or both of you instructing a solicitor to act on your behalf, and negotiate any dispute. This can be either via correspondence, or by attending a meeting with your ex-partner and your legal adviser. Although it is not necessary for both parties to be legally represented it is usually helpful, as agreements are much more likely to be reached when both parties have the benefit of legal advice. As members of Resolution our solicitors follow a code of practice which aims to reduce conflict and promotes a constructive approach to family disputes. You can find more information on the code of practice at www.resolution.org.uk.

Stephanie Layton

Finally Arbitration is a process which is most similar to the Court. It is much more formal and an Arbitrator will be the person who will ultimately impose a decision upon you regarding your children, if you cannot agree. The decision can be made either after hearing from both parties in a hearing setting, or in some cases, if suitable, after reading written submission from both parties.  An Arbitrator’s decision is however legally binding so Arbitration should not be entered into without serious consideration. The advantages are that it is usually much quicker and cheaper than making an application to Court. You would need a solicitor to represent you through the process and advise you as to whether Arbitration would be suitable for your case.

In my experience the majority of issues regarding children matters can be resolved without having to make an application to the Court. However there are sometimes situations where an application to the Court is unfortunately necessary or inevitable. We will look at the Court process in more detail next time.

If you would like to arrange a confidential chat with one of our experienced solicitors regarding any of the issues above then please contact Stephanie Layton on 0191 232 8345.