Access denied

Its been a busy few weeks for family law. That the comprehensive spending review would result in substantial cuts to legal aid for family cases has been trailed for some time now. What was perhaps less expected so soon after the closing of the family justice review's call for evidence was the headline that appeared on the front pages: 'Divorcing parents to be kept out of court.' Further down the article reported that a Whitehall review will 'recommend that the role of lawyers be reduced to a minimum'.

While the review isn't due to report until the middle of next year, it is considering some fairly radical options.

It is clear that the family justice system needs to find better ways of helping separating families. Few of us who practise family law would argue with the contention that it is a good idea to keep parents out of court. Where we might disagree, though, is with the suggestion that they should never be there and that lawyers are unnecessary and make matters worse.

Let's look at the facts: 80 per cent of people turn first to a lawyer when faced with family breakdown and more than 90 per cent of family cases are already settled out of court. That's fewer than one in ten ending up in court.

It is easy to bash lawyers but I believe the creation of the Resolution code of practice 27 years ago is in large part responsible for this success story. It is precisely because of that lawyer-led initiative that we now have a much less adversarial system of family law. Resolution's 5,500 family lawyer members recognise that each family needs a process that is right for them. That might be mediation, but it might also be collaborative law (another lawyer-led initiative which gives couples an alternative to court), parent information or another option and there will always be some cases that need the intervention of the court.

It is far too simplistic to suggest that the ten per cent of separating families who look to the court to help resolve their family disputes are 'squabbling' and therefore don't deserve the support and help of the state. Those families that do need the courts' help usually do so for good reason '“ protection from domestic abuse, intimidation by one partner over another or an imbalance of financial power in the relationship.

If the priority of the family justice review is about creating a system that better meets the needs of separating couples and their children this is very welcome. However, it is clear that saving money is the primary driver. In the current climate cuts may be inevitable but the risk is that in its rush to bring about cost-saving reforms the government is going to narrow the gateway to court to such an extent that those families who need it cannot access it.

There is a real danger that policy about the future shape of family justice is being driven by a small number of high-conflict cases. Rather than create an entire system based on a minority of difficult cases, the review would be better placed to look for solutions specifically geared to those intractable cases.

One only has to look at the history of child support in this country to see the dangers of moving too quickly forwards with an administrative approach to family law. The Child Support Agency was established in 1993 with the specific purpose of taking child support cases out of Court. At the time of its introduction it was argued that the social security bill would be slashed with benefits reduced pound for pound for every payment recovered. The reality was very different.

At one point the amount of uncollected child support was £3.5bn, of which £760m were debts so old they could no longer be enforced. The government spent £540m on reforms to 'fix the CSA' but the National Audit Office concluded that those reforms had not only failed to improve the Child Support Agency but had actually made some aspects of its performance worse.

It took 13 years of failure for the government to reach the conclusion that the agency was not fit for purpose. Meanwhile, thousands of children had grown up without the financial support they should have had.

I urge the government not to make the same mistake now as it reviews other areas of family law. There appears to be a rush ahead with support for mediation as the only solution to the problems of the family justice system. The evidence base for this approach is patchy and leaves many questions unanswered.

How many suitably qualified and regulated family mediators are there in the country? Currently anybody can set up as a mediator and in fact there may be fewer than 800 mediators who belong to a self regulating body. It is not clear whether there are enough mediators out there to meet demand if it is made compulsory in family cases, or if a compulsory assessment is required before going to court.

Proper thought and consideration must be given to other alternatives including collaborative law, arbitration and early parent information. While mediation has a real and useful role to play there are real dangers in opting for a quick-fix solution to the problems facing the family justice system. There cannot and must not be a one-size-fits-all approach. This would run the risk of unintended consequences. There is no evidence to suggest that compulsory mediation will save money, and no evidence to suggest that it will speed up a solution where couples cannot agree '“ quite the reverse if it's simply an extra hoop to jump through.

But the most worrying unintended consequence of all '“ if the role of lawyers in providing legal support around mediation and other options is not recognised and retained '“ must be the potential this would create for a system of rough justice where couples make agreements that bear no relation to their legal rights.

If the newspapers were right that the thinking in Whitehall is that the role of lawyers should be reduced to a minimum, then the role of lawyers in family cases has been greatly misunderstood. It is wrong to see lawyers as part of the problem. We are in large part the reason why less than ten per cent of cases end up in court. Lawyers play a vital role in advising families how best to manage and avoid unnecessary conflict '“ without them the danger is that parents simply carry on their conflict outside of any managed or moderated environment. The real losers in that situation must surely be the children.