Family lawyers hold key to driving change
A â€˜dire' court system hampered by LiPs represents the biggest challenge for the future, writes Matthew Rogers
The family justice system has endured a tough year but those at the coalface have remained hardened and committed in pushing to change amid unprecedented crises.
Legal aid cuts and rises in court fees continued to deny access to justice to many while the surge in care cases, compounded by the ongoing closures across England and Wales, placed family courts under even greater pressure.
The latest legal aid statistics from the Ministry of Justice reaffirmed the damaging impact of LASPO on those seeking state help. Since its introduction there have been 70,000 fewer applications (43 per cent) for family legal aid and 53,000 fewer granted (33 per cent).
As a consequence, a growing number of litigants in person are frequenting the courts, which on occasion has frustrated the process and presiding judges. For Hazel Wright, a partner at Hunters, LiPs represent the biggest challenge for the family justice system heading into 2017. She stressed to Solicitors Journal the importance of securing fair outcomes for families at a time of increasing need and where an already stretched system is being asked to assist more LiPs without the necessary resources to do so.
Court fees also rose to part-fund the £700m court and tribunal reforms this year. For separating couples the fee for issuing a divorce petition increased by £410 to £550. Tony Roe, the principal of Tony Roe Divorce and Family Law Solicitors, described how the ‘dire state of the court system’ was next year’s greatest challenge. ‘There are massive delays within the system and not enough judges, all the way up the Court of Appeal. Meanwhile the MoJ has hiked court fees, making a significant profit on each divorce, something which the Justice Select Committee examined this week.’
As ‘divorce season’ approaches, separating married couples should undergo a mediation information and assessment meeting (MIAM) but their take-up has been low as only one in five couples use them. The MoJ’s legal aid figures revealed that in the last quarter they fell by 17 per cent compared to the previous year and are at just over half of pre-LASPO levels.
When called upon, MIAMs have proved largely successful, with 62 per cent of mediations ending with successful agreements. The rate of success varied between different categories, with the highest proportion of agreements (65 per cent) in the children category.
For Wright, greater use of out-of-court processes is a key area for progress to be made in 2017. In particular, she earmarked alternative dispute resolution as a means for resolving children and finance disputes while also highlighting the importance of referring high-conflict Children Act cases to relationship experts so as to avoid parents clogging up the courts.
In July, the Institute of Family Law Arbitrators’ children scheme was launched as a flexible alternative to court proceedings, and was endorsed by lawyers and the president of the Family Division, Sir James Munby. Roe commented: ‘Arbitration is an excellent option for so many cases, now extended to private law children matters, and is really taking off. However, many practitioners somehow overlook it despite its flexibility, speed, and confidentiality. Please make a New Year’s resolution to try arbitration in 2017!’
Other forms of ADR to help children are also being piloted. Currently being trialled in Liverpool, settlement conferences have been backed to help resolve private law children matters but the jury is still out on their application in public law matters.
In September, Munby J revealed that ‘a radical rebalancing of the very functions and purpose of the family courts is needed’ after revealing the number of care cases had risen by 26 per cent between 2009/10 and 2014/15 – from 8,832 to 11,159.
Following the introduction of the Children and Families Act in 2014, however, the average duration of care proceedings fell from 56 weeks in 2011 to 28 weeks in early 2016. Shorter care proceedings have been found to have a positive impact for children after a study funded by Cafcass and the Department of Education found that more children ended up in stable placements. Munby J also praised the role of the Family Drug and Alcohol Court (FDAC) and Pause, which focuses on addressing the underlying problems women face from losing successive children in repeat care proceedings.
Review and collaborate
Looking ahead, Solicitors Journal would like to see other initiatives progress. The Centre for Social Justice has previously called for children’s centres to provide preventive relationship support to separating couples where possible and, if appropriate, to resolve conflict and find solutions to challenges. In September, lawyers backed proposals for an ‘observatory’ to improve the use of research in the justice system. Both of these ideas are eminently sensible and would improve outcomes for families.
We would hope that 2017 would finally bring a review of LASPO and that the first roll out of online courts will shed some light on their possible effects. The uncertain impact of Brexit on UK family law should also become clearer. Next week the Justice Select Committee will examine the impact of Brexit for civil justice with Phillip Marshall QC, chair of the Family Law Bar Association, alongside Resolution, due to give evidence.
A collaborative effort is needed and MPs should consult with family lawyers and judges more regularly if the family justice system is to improve and provide families, and children especially, with the protection and positive outcomes they deserve.
Matthew Rogers is a reporter at Solicitors Journal