Since before the election in the Spring that turned Labor out of office in favor of a Conservative/Liberal Democratic government, British voters have been promised a thoroughgoing reevaluation of family law. Begun under the Brown government, the review of family law has been largely cloaked in mystery.

But last week, Lord Justice Wall, President of the Family Division gave a speech to the organization Families Need Fathers that sketched the outlines of the coming changes, and many news outlets picked up on his remarks. But most of those were at best suggestive and, as is so often the case, reporters looked for words that might unsettle readers as opposed to those that might inform them. From articles reporting on Wall’s remarks, not a lot could be gathered about the immediate future of British family law.

But this blog by family attorney Marilyn Stowe sheds a good bit more light on the subject. Her basic take on the Lord Justice’s speech is that it’s a harbinger of legal changes to come, or at least those to be recommended by the Cameron and Clegg government.

What will the new law look like? Significantly, Wall said that “long and protracted contact and residence disputes will become a thing of the past.” How will that be accomplished? That seems like a good question, one answer to which will apparently be that pre-divorce mediation will be mandatory.

As I’ve written before, mediation is a fine thing. It’s cheaper and quicker than litigation and the best thing about it is that parties agree on the result. In litigation, one party wins and the other loses, guaranteeing that the latter is unhappy. “Getting to Yes” in mediation tends to make both parties equally happy or unhappy with the result; neither looks resentfully on the other side.

But one major problem with mediation is that it’s only as effective as the equality of the parties’ rights. If one party knows he can’t win in court and the other knows she can’t lose then, yes, they can probably agree to something in mediation, but one party will still lose and the other will still win. Call it anything you want, but mediation is just a gloss on the same old system when parties with different de facto rights mediate.

So the key to mediation’s being successful at reducing conflict is to equalize parental rights. About that Stowe’s message is somewhat encouraging, but only somewhat.

It does appear that changes to the law are afoot. Lord Justice Wall appears to approve of shared parenting, saying that the critical question is not so much the division of child’s time between their parents, but ensuring the role of each parent in a child’s life is given its proper importance.

In order for there to be a presumption of shared parenting (as opposed to equal parenting) Lord Justice Wall stated on several occasions in his speech that Parliament needs to enact the necessary legislation…

My guess? There will probably be a presumption of shared parenting as a starting point. A tribunal will decide in the case of disagreement (assuming mediation or other alternative dispute resolution methods fail) how shared parenting will work. There will be no more arguments about whether both parties should parent a child, as both will have that entitlement as a starting point. Everything will be approached from a less hostile, more user-friendly and cheaper perspective. This approach will focus on allocating the time children will spend with their parents based on the assumption of shared parenting.

The tribunal system she’s talking about sounds like a system that’s friendlier to divorcing parents than the current one, meaning that they won’t need legal representation. My guess is that evidence rules will be largely abandoned and it will be the role of the tribunal to assist parties in getting the facts of the case before the court. It’s less adversarial and probably cheaper.

So the bottom line seems to be that, in the not too distant future, divorcing parents in the U.K. will start with the presumption that their children need both of them in their lives. The only issue will become what exactly will the arrangement be and that will be decided in mediation if at all possible.

A subject Stowe doesn’t broach is how the system will work when one parent interferes in the parenting time of the other, or when parental alienation of the child occurs. Usually, mediation is poorly suited to those cases, and I suspect they will end up in court.

If Stowe is correct about the direction of the new family law, fathers will still not have equality with mothers. The system she describes is an open invitation to tribunals and judges to issue parenting orders that reflect their own biases about who should be a parent and how much. And if parties know that orders are likely to favor mothers, mediation won’t do much to change the matter. That’ll mean fathers will tend to knuckle under in mediation and accept a lesser role, resulting soon in studies that say “see, fathers didn’t want time with their children after all.” That’s the pessimistic view.

The optimistic view is that the emphasis of the new laws will be parenting time and responsibility, and real relationships between parents and children. Mothers who attempt to thwart fathers’ rights will run afoul of the law and fathers will be able to assert their rights to parenting time. In mediation, fathers will be able to say “every other weekend plus Wednesday night isn’t real parenting.” Dads will be able to demand, and mothers will be forced to accept a greater role for fathers in their children’s lives.

We’ll see what the Parliament enacts and then we’ll see how it works.

Robert Franklin, Esq., is a board member of Fathers and Families, America’s largest family court reform organization. To learn more, see www.fathersandfamilies.org. 

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