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Family Law

The leading authority on all aspects of family law

07 APR 2008

Liz Trinder : Conciliation, The Private Law Programme and Children's Well-Being: Two Steps Forward, One Step Back?

Liz Trinder, Reader in Family Studies, Geography Politics and Sociology, Newcastle University

It has become a commonplace that parental conflict is bad for children. What is more difficult to agree upon is how best to reduce conflict, particularly for children whose parents are locked in legal disputes over contact. In England and Wales a belief that lawyers, courts and trials fuel, rather than reduce, conflict has led to longstanding efforts to divert parents away from court, and, if that is not possible, away from contested hearings. Most recently the Private Law Programme (PLP) sought to facilitate early dispute resolution for parties reaching court. A key reason for the development of in-court conciliation at first directions hearings was so that 'distress to all parties is minimised'.

The PLP has already had some effect, with an increase in Children and Family Court Advisory and Support Service (Cafcass) time spent on in-court conciliation and an 8% reduction in the number of reports in 2006 (Cafcass, Annual Report and Accounts 20062007 (TSO, 2007)). The rationale for this rebalancing of resources is, at least partly, predicated on attempts to reduce conflict:

'[Cafcass] are working hard towards our goal to invest the time in working directly with families to reach agreement where it is safe to do so, thereby reducing conflict, rather than writing lengthy reports for court. Research has shown that ongoing conflict within a family is damaging for children, which is why we are making this investment.' (at p 6)

In this article, however, I question the effectiveness of in-court conciliation as a conflict reduction tool, drawing upon a recent research study of conciliation (see L Trinder and J Kellett, The longer-term outcomes of in-court conciliation (Ministry of Justice, 2007) and see January [2008] Fam Law 83). My core argument is that the discussion of early interventions and dispute resolution conflates three related, but different, forms of conflict. These three are: dispute conflict (ie the legal dispute), contact conflict (or conflict relating to the principle and/or practice of contact, primarily relating to timetables) and embedded conflict (the broader context of the parental relationship, including inter-parental distrust, anger, hurt, etc). Our research found that conciliation was reasonably effective at resolving or containing dispute and contact conflict, but that, in itself, did not automatically address or resolve embedded conflict. The result may well be that more children are exposed to more conflict more regularly. Given the limitations of conciliation in addressing all three forms of conflict, I consider two alternatives: the planned refocusing of the PLP towards a 'Private Law Pathway' and the Australian Child Responsive Program.

For the full article, see April [2008] Family Law journal.

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