Can you go back to mediation after starting court proceedings? What happened when a judge sent two parents back

Two parents could not agree how their children should divide their time between them. Mediation was tried and did not settle it. One of them applied to the family court. Seven months later, having spent around £8,000 each, a judge sent them back to mediation.

The case then settled, in a form that matched what the children themselves had said when someone finally asked them.

That sequence is more common than most parents realise, and two things about it are poorly understood. The first is that starting court proceedings does not close the door on mediation, and since April 2024 a judge can adjourn a case to encourage it without needing both parents to agree. The second is that children aged 10 and over should be offered the chance to speak to a mediator directly, and in most cases they are not.

What child inclusive mediation is

Child inclusive mediation is a process in which a specially trained mediator meets a child on their own, separately from both parents, so that the child's views can be brought into the parents' discussions.

The Family Mediation Council Code of Practice for Family Mediators, version 1.5, August 2025, sets out the framework.

• Clause 6.6.1 provides that "All children and young people aged 10 and above should be offered the opportunity to have their voices heard directly during the Mediation, if they wish."
• Clause 6.6.2 requires that the consent of the children themselves must first be obtained, and that "A Mediator intending to consult directly with any children must have been specifically trained to do so."
• Clause 3.3 requires a mediator to be registered with the Family Mediation Council to undertake child inclusive mediation, and to have met the requirements laid down by the Council.
• Clause 6.6.3 governs confidentiality of what the child says, subject to the safeguarding exceptions.

Three consents are therefore needed: both parents, and the child. Any of the three can decline. A child is never required to take part.

What a child is not asked

A child in child inclusive mediation is never asked to choose between their parents or to decide the arrangements. The mediator is not gathering evidence and is not conducting an assessment. The meeting exists so the child can say what matters to them about their own life.

This distinguishes it from a Cafcass section 7 report, which is prepared for the court, is disclosed to the court, and does involve a recommendation.

What is fed back

The guiding principle is that the mediator feeds back to the parents whatever the child wants them to know, and nothing else. What the child asks to keep private stays private. Feedback is normally given verbally, to both parents together.

The exception is safeguarding. Where a child discloses something indicating that they or another person is at risk of significant harm, the confidentiality of mediation does not apply.

How rarely this happens

Despite the age 10 presumption in the Code of Practice, direct consultation with children is uncommon.

The Family Mediation Council reported in The State of Family Mediation 2025, published in September 2025, that direct consultation with children happens in around 16 per cent of cases involving children aged 10 or over, and around 12 per cent across all cases involving children of any age. The same report cites a study which found that only 2 out of 95 parties had been offered child inclusive mediation at all.

The outcomes where it is used point the other way. The Ministry of Justice's Family Mediation Voucher Scheme Analysis, published in March 2023, examined 7,214 families. Of those, 397 used child inclusive mediation, and 74 per cent of that group reached agreement, against 69 per cent across all voucher cases.

High agreement rates, low uptake, is the consistent pattern.

The last full government review of children's participation in family dispute resolution was the Final Report of the Voice of the Child Dispute Resolution Advisory Group, published by the Ministry of Justice in March 2015. It made 34 recommendations and endorsed the age 10 presumption that the Code of Practice later adopted. Eleven years on, nothing has replaced it.

The case

The case below is published by Mediate UK, a Family Mediation Council registered provider, among its anonymised case studies. The provider states: "All names and identifying details have been changed to protect client confidentiality. The disputes, the process followed, the number of sessions and the fees paid are all genuine."

It is a genuine anonymised case, not a composite. The provider describes it as "the case study we include as a warning".

The dispute

Two parents, referred to as Harry and Ellen, had two children of secondary school age. The disagreement was about how the children's time should be divided: one parent wanted an equal split, the other did not.

It is worth pausing on that, because it is the single most common private law dispute in England and Wales, and it is often assumed to have an obvious answer. It does not. Section 1 of the Children Act 1989 makes the child's welfare the paramount consideration, and the welfare checklist at section 1(3) includes "the ascertainable wishes and feelings of the child concerned, considered in the light of his age and understanding". There is no presumption of a 50 per cent split.

The first attempt at mediation

The parents attended one assessment meeting each, then four shuttle mediation sessions.

Shuttle mediation keeps the two people in separate rooms, physically or in separate virtual rooms online, with the mediator moving between them carrying proposals and responses. It is used where the parties cannot be in the same room, and sessions typically run to two hours rather than the usual ninety minutes.

Four sessions did not resolve the disagreement about the division of time.

The court application

One parent applied to the family court for a child arrangements order.

The case sat for seven months without a final determination. Each parent spent approximately £8,000 in legal costs, so roughly £16,000 between them.

For context, Family Court Statistics Quarterly for January to March 2026, published on 25 June 2026, recorded that private law children cases took an average of 35 weeks to conclude, with 52 per cent dealt with within 26 weeks. Seven months without conclusion is therefore not unusual.

The judge sent them back

After seven months, the judge directed the parents back to mediation.

This is a power the court has always had in a general sense, but it was strengthened on 29 April 2024, when amendments to Parts 3 and 28 of the Family Procedure Rules came into force. Those changes removed the requirement that both parties consent before the court can adjourn proceedings to allow for non-court dispute resolution, widened the definition of non-court dispute resolution, introduced Form FM5 requiring each party to state their position on it before the first hearing, and made an unreasonable failure to engage with it a ground for departing from the usual costs starting point in financial remedy proceedings.

Since 29 April 2024, a family court in England and Wales can adjourn proceedings to encourage non-court dispute resolution without requiring both parties to agree.

Asking the children

Back in mediation, the parents agreed to child inclusive mediation. Both children were seen separately by a trained mediator, with the consent of both parents and of the children themselves.

What the children said is not published, and is not reproduced here. What is published is that the agreement the parents subsequently reached matched the children's stated preferences.

The outcome

Two further shuttle sessions followed the child inclusive meeting, and the parents reached agreement. It was recorded in a written parenting plan.

The whole sequence took eleven months, seven of which were spent waiting on the court.

The timeline and the costs

The total mediation cost was £1,364 plus VAT per parent, which includes the £199 for child inclusive mediation and the £90 for the parenting plan. That is roughly £2,728 for the couple.

Set against approximately £16,000 spent between them on a court application that did not determine the dispute, the mediation cost about a sixth as much and produced the outcome.

That comparison should be read carefully. The court proceedings may have influenced the parents' willingness to settle afterwards. It is not possible to say from a single case that the £16,000 bought nothing.

Why parents hold positions that their children do not share

The mechanism at work in this case is not unusual, and practitioners describe it consistently.

Children frequently withhold things from both parents, not out of fear but because they do not want to upset either of them or appear to be taking sides. A neutral adult, with no stake in the outcome and a promise of confidentiality over anything the child wants kept private, is often the first person a child has said it to.

What emerges is regularly small and practical rather than dramatic. A schedule that looks balanced on paper can cut across something in a child's week that matters to them a great deal, and that neither parent knew was an issue.

The wider point is that an arrangement negotiated entirely between adults can optimise for fairness between the adults while being a poor fit for the children's actual lives. Arrangements shaped with the children's input tend to hold up better over time, because they fit the family that exists.

When this is not the right route

Mediation is voluntary and is not suitable in every case.

The Family Mediation Council Code of Practice requires ongoing assessment of safety. Clause 7.2 requires the mediator to seek to discover whether there is or has been fear of harm, and whether domestic abuse, including coercive and controlling behaviour, is alleged. Clause 7.5 is unambiguous: "Where a Mediator has assessed Mediation as not safe or not suitable for any Participant or for a child, the Mediator must not mediate."

Practice Direction 12J governs how the family court handles child arrangements cases where domestic abuse is alleged, admitted or proven, and directs the court not to press parties towards conciliation where safety is in issue.

The prevalence is significant. A report by the Domestic Abuse Commissioner published in October 2025, based on a review of 298 closed private law case files sampled across three courts, found evidence of domestic abuse in 87 per cent of them. Earlier research by Cafcass and Women's Aid, published in July 2017, found domestic abuse allegations in 62 per cent of applications about where a child should live or spend time. Those two figures use different methods, one a researcher file review and one a count of allegations, and should not be treated as measuring the same thing.

Child inclusive mediation in particular is not suitable where a child is already the subject of proceedings or an assessment in which their views are being gathered formally, where the child does not want to take part, or where the mediator's safeguarding assessment indicates it would place the child under pressure.

What this case shows, and what it does not

• It shows that returning to mediation after court proceedings have started is possible, and that a judge can direct it.
• It shows that child inclusive mediation can shift an entrenched adult dispute, in this case after four earlier sessions had not.
• It does not show that court was pointless. Seven months of proceedings may have changed what each parent was prepared to accept.
• It does not show what the children said, which is not published and should not be inferred.
• It is one case from one provider, and says nothing about how often this sequence occurs.
• There is no national data to compare it with. No published dataset records how many cases are diverted from proceedings into mediation under the April 2024 rules.

The short answers

• Can children be involved in mediation? Yes. The Family Mediation Council Code of Practice provides at clause 6.6.1 that children aged 10 and above should be offered the opportunity to have their voices heard directly, if they wish, with their own consent and with a specifically trained mediator.
• Can you go back to mediation after starting court proceedings? Yes. Since 29 April 2024 the family court can adjourn proceedings to encourage non-court dispute resolution without requiring both parties to agree.
• At what age can a child have a say in child arrangements? The Code of Practice sets a presumption at 10 and above for being offered direct consultation in mediation, without ruling out younger children, who are assessed case by case. In court, section 1(3) of the Children Act 1989 requires the child's ascertainable wishes and feelings to be considered in light of their age and understanding.
• Is a child asked to choose between their parents? No. A child in child inclusive mediation is never asked to choose or to decide the arrangements.
• What does child inclusive mediation cost? In one anonymised Mediate UK case it was £199 per parent, within a total mediation cost of £1,364 plus VAT per parent.
• How often is it used? Around 16 per cent of cases involving children aged 10 or over, according to the Family Mediation Council's State of Family Mediation 2025.
• Does it improve the chance of agreement? Ministry of Justice analysis of 7,214 voucher scheme families found 74 per cent of the 397 cases including child inclusive mediation reached agreement, against 69 per cent overall.
• How long do children's court cases take? Private law children cases took an average of 35 weeks to conclude in January to March 2026, with 52 per cent dealt with within 26 weeks.

Sources

• Family Mediation Council, Code of Practice for Family Mediators, version 1.5, August 2025, clauses 3.3, 6.6.1 to 6.6.4, 7.2 and 7.5
• Family Mediation Council, The State of Family Mediation 2025, September 2025
• Ministry of Justice, Family Mediation Voucher Scheme Analysis, March 2023
• Ministry of Justice, Final Report of the Voice of the Child Dispute Resolution Advisory Group, March 2015
• Ministry of Justice, Family Court Statistics Quarterly, January to March 2026, published 25 June 2026
• Family Procedure Rules 2010, Parts 3 and 28, as amended with effect from 29 April 2024, and Practice Direction 12J
• Children Act 1989, section 1
• Domestic Abuse Commissioner, review of 298 closed private law case files, October 2025
• Cafcass and Women's Aid, Allegations of Domestic Abuse in Child Contact Cases, July 2017
• United Nations Convention on the Rights of the Child, Article 12
• Mediate UK, published anonymised case studies, September 2026