Mediation and the judge’s letter to ‘Sam’

Judges need to ‘use their imaginations’


In a recent Huffpost article Jane Robey criticises Peter Jackson J’s judgment – Re A (Letter to a Young Person) [2017] EWFC 48 – written in the form of a letter to ‘Sam’, the ‘young person’ concerned. She does so not to oppose the style of writing chosen by the judge. She uses the style of the judgment, as I see it, as a way to draw attention to mediation: ‘A novel approach to writing a verdict [yes, really, ‘a verdict’) is one thing’ she says; ‘but it’s time for judges to use their imaginations in a completely different way’.


Using judicial ‘imaginations’ is linked to the importance of people involved in family breakdown going to mediation. However, I can assure Janet Robey that – as far as I know – no family judge gets any pleasure form sitting through many of the family breakdown cases which they hear. They do it because other attempts have failed. Their job is to impose a solution. They must hear evidence to do so. Doctors don’t want people to be sick; but because people are sick in one way or another, doctors remain in work. But they also help to find ways – medical research – to stop people being sick.


The analogy with judges and mediation (ie parallel to preventative medicine) is close to doctors and illness. To suggest that a judge sits and hears cases because the judge prefers that to mediation – an interpretation which could be put on Robey’s letter – is unhelpful. I have been involved in mediation from the outside (ie I am not a mediator) since I helped set up this country’s first ‘conciliation service’ in Bristol in 1975. From the start judges (Family Division judges; circuit judges and district judges and magistrates’ clerks: we held our first steering committee in the Bristol Magistrates’ Court) were actively involved in developing the idea.


Mediation: a need for publicity


Information and publicity for mediation is, surely, the real problem? Many people involved in family breakdown – couples and their children, alike – do not know about mediation. Most judges encourage it, and have done for many years; but awareness is need long before the family breakdown gets to the judge. If others who are in contact with a couple whose relationship is coming apart – friends, children’s teachers, health professionals etc – do not know about mediation, then they will not know to pass on the important information about mediators.


And so back to Peter Jackson J’s letter (I cannot believe that patronising remarks from a mediator about his genuine effort, helps mediation information and publicity; but that is for NFM to decide…). Says Jane Robey:


On the face of it [the letter was] a fuzzy and humane (sic: perhaps ‘human’?) approach, yes, but that doesn’t alter the fact that as ever in divorce and separation cases that go to a court, parents’ and children’s futures get determined by a judge: the one person on the scene who knows least about the family.

I say it’s high time for the judiciary to become more creative and vocal in its efforts to avoid court battles that expose the dirty laundry of a separating family, often in the full glare of the people most affected: the children.


Peter Jackson J: a letter to ‘Sam’


Indeed, but some people – even with the most skilled mediator – cannot reach agreement. Jane Robey know that, I am sure. And if people cannot agree that is what judges are for. Very few people want to go to court. For some, perhaps, the only way out is the catharsis of a court hearing, and for a judge to make up their minds and impose a solution. No mediator can generally get around that. And I cannot help wondering how susceptible to mediation Sam’s father might have been.


Sam is a 14 year old boy who had applied to court to travel with his father to live in an unnamed Scandinavian country. His mother opposed the plan. The judge in his letter to Sam described the issues for him to decide as:


The decisions that I have to take are these: (1) should you go and live in Scandinavia? (2) should you become a citizen there? (3) if all your parents [he had a step-father as well] are living in England, should you spend more time with your dad? (4) if your dad goes to Scandinavia, and you stay here, how often should you see him?


He did not agree with Sam’s application (taken over for him by his father) to go to Scandinavia. Of the father, the judge said in his letter to Sam (as one of the ‘factors he had to take into account’):


… He is a man with some great qualities. When he is relaxed, he has charm and intelligence. But underneath that, I see someone who is troubled, not happy. He has not achieved his goals in life – apart of course from having you. Because of his personality style, and the love you feel for him, he has a lot of influence over you. All fathers influence their sons, but your father goes a lot further than that. I’m quite clear that if he was happy with the present arrangements, you probably would be too. Because he isn’t, you aren’t.


Mediation and a paternal influence


I wonder how a mediator would have dealt with the level of paternal influence over Sam? The judge concluded:


Sam, the evidence shows that you are doing well in life at the moment. You have your school, your friends, your music, and two homes. You’ve lived in England all your life. All your friends and most of your family are here. I have to consider the effect of any change in the arrangements and any harm that might come from it. In any case where parents don’t agree about a move overseas, the parent wanting to move has at least to show that they have a realistic plan. That plan can then be compared with other plans to see which is best. That has not been possible here. You will remember that at the earlier hearing in May, I made very clear to your father that if he was going to seriously put forward a move to Scandinavia, he had to give the court proper information about where you would be living and going to school, where the money would be coming from, and what the arrangements would be for you to keep in touch with family and friends in England. At this hearing, no information at all has been given. Your father described the move to Scandinavia as an adventure and said that once the court had given the green light, he would arrange everything. That is not good enough…


A constructive way forward – rather than criticising destructively a real attempt by a judge to communicate with a child who was the subject of the case before him – would be to accept that the judge was involved. At that stage (we do not know what mediation had been tried in Sam’s case) the judge had to make a decision. He did so; and he involved the boy (one of the actors in the case) in his decision-making and its outcome.


If Jane Robey thinks the means of communication is not appropriate, how would she – as a judge (ie on the assumption that mediation had not been possible: I avoid the word ‘failed’) – have communicated with Sam and his parents?