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Mediation and the family courts
IDAS blog

Mediation and the family courts

27 March, 2023
Mother protectively hugging her son

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The Ministry of Justice announcement that mediation may become mandatory could put victims of domestic abuse and their children at further significant risk.

Domestic abuse is regularly minimised and dismissed in family court leaving victims and their children exposed to further harm. Victims fear that speaking about the abuse will result in them not being believed or if they do, accused of ‘obstructing’ contact.

Whilst the proposed measures would exclude couples where there are allegations of ‘Domestic violence’ this could still result in victims who have not disclosed abuse or may not be aware that the behaviour they are being subjected to is abuse, ending up in mediation.

There are several reasons why mediation can result in increased risk for victims:

  • Lack of understanding of domestic abuse,
  • Abusers manipulating the process,
  • Victims complying for fear of the abuser,
  • Unequal power dynamics being exacerbated in mediation,
  • Mediators being subjected to coercion and manipulation,
  • Risk not being identified,
  • The abuse being further minimised in favour of prioritising child contact with both parents,
  • The child’s voice not being heard.

Claire Throssell, IDAS Survivor Ambassador and campaigner, whose children were murdered by their father during court ordered contact, said of the proposals, “This is yet another scheme that protects perpetrators but silences victims.  The burden and responsibility of proving they are being abused and therefore exempt from mediation is yet again on the victim. It is yet another opportunity for perpetrators to continue the abuse and control. 

“It is widely known that judges require more training regarding Domestic Abuse and the same level of understanding and training must be required of mediators should this be taken forward.  If mediation is to become mandatory, then mandatory training should be undertaken by mediators.

“Children's rights, feelings, voice, and safety cannot be upheld by mediation as they cannot resolve contact and may well endanger them even more if not handled in the right way.”

Mediation is most successful when the balance of power is equal and both parties are safe to express their wants and feelings and prioritise their children’s wishes, feelings, and safety. This is not the case where domestic abuse is a factor.

There is widespread misunderstanding that domestic abuse is based on couple dynamics and will end when the relationship ends. The Domestic Abuse Act 2021 acknowledges post-separation abuse and yet the Government’s announcement fails to recognise that in over 70% of cases in family courts domestic abuse is a factor, and this is just the cases where abuse is disclosed. There is little acknowledgment that many ‘disputes’ result from victims trying to make safe contact arrangements while perpetrators are determined to continue their abuse through the courts.

The narrative that ‘parental conflict’ results in lengthy court proceedings harming children, completely brushes over the well evidenced issue that significant harm to children is posed by perpetrators of domestic abuse.

It also fails to acknowledge that many victims will have been told by local authority children’s services that they should leave the relationship to keep their children safe from the abuse only to be forced into mediation and court proceedings by the perpetrator.

The family courts are failing to effectively respond to domestic abuse allegations resulting in repeated litigation and children being subjected to continued harm by abusers.

Currently, parents are required to attend mediation information assessment meetings (MIAMs) unless they can evidence domestic abuse, which exempts them from attending.

Whilst we agree that more must be done to improve outcomes for victims of domestic abuse and their children where there are concerns about arrangements for safe child contact, mandatory mediation and judges being able to order mediation could further entrench the problems the Governments own Harm Panel report lays bare. 

Furthermore, the voice of the child is continually overlooked and disregarded, even when they sow clear signs of distress about court ordered contact. 

The Government have launched a 12-week consultation on this proposal. We seek urgent assurances about how victims of domestic abuse and their children will be safeguarded.

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