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Family Matters - The changing face of family law

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This was first published in the Wigan Observer on January 14th 2014

Q: I have heard that families will have to go through mediation before going to court to resolve family disputes - is this true?

A: As the New Year commences there are a couple of stand out developments in the ever changing world of family law that are likely to have a significant impact for the public at large, driven in part by recognition of the fact that ever increasing numbers of Litigants in Person are having a dramatic impact upon the Family Courts, since the removal of Legal Aid for most family cases not involving Domestic Abuse in April 2013.

Litigants in Person are those individuals who choose to represent themselves in court proceedings, either because they can’t afford or prefer not to instruct a lawyer. As most “LiPs” are unlikely to have any legal training this means that Judges, without the input of Lawyers, are likely to require more time to deal with cases to ensure that fairness is achieved. Of course more time spent on individual cases means there is a risk that fewer cases can be dealt with than before and in turn, delays for others.

It is fair to say that many question whether the removal of Legal Aid will save the money the Government hopes when the subsequent “cost” is taken into account because of the changes required elsewhere.

The introduction of The Family Court is an effort to streamline the existing complicated court structures in an effort to simplify the court process, make an appropriate allocation of court resources to allow cases to be dealt with properly and in these days of Government austerity, save money. That, together with the task of ensuring those not familiar with the complexities of the law, and ensuring changes are made to ensure LiPs are being properly assisted to understand the court procedures, is a daunting task.

As it stands, most Family Law cases are issued and proceed in the local County Court or transferred to the Family Proceedings Court or the High Court, depending on the complexity of the case. By the end of 2014 those three levels of Family courts will become one single Family Court where a case will be allocated to an appropriate “level” depending on how complex it is.

Within Greater Manchester a lot of work has already been done by the Court Service and practitioners to ensure the new system is ready from the start of 2014. In practical terms this means that cases involving Children will be dealt with at the Manchester Civil Justice Centre or one of 4 Hearing Centres including Bolton, Stockport, Oldham and Wigan.

The second development and perhaps one which will have the most immediate and direct impact upon those seeking to resolve a family law problem is the Governments plan to make mediation mandatory for separating couples from April 2013 as part of the reforms included in the Children and Families Bill going through Parliament, which require anyone seeking a court order to resolve a dispute over children, finances or splitting property must attend a Mediation Information and Assessment Meeting (MIAM).

When Legal Aid changes came into force it was expected that more cases would be resolved by couples attending mediation to sort out their differences, the purpose being to divert less complex family disputes away from formal court proceedings in the hope of resolving them quickly and inexpensively.

The MIAM will involve both individuals meeting with a certified mediator who will help them to understand the various ways in which they can separate and the options available to them and is still available under Legal Aid funding for those that qualify financially.

Other than the supposed savings in money, another attraction of attending mediation is the evidence that a majority cases are resolved by couples, but this possibly ignores the fact that those willing to attend mediation might be more likely to agree anyway.

Recent reports have indicated that a large proportion of individuals would prefer not to attend mediation if they had a choice, and this is perhaps reflected in the large fall of around 50% in numbers attending mediation since the Legal Aid reforms. This is possibly as a result of people not getting information from lawyers about the benefits of mediation, but also because of people making the choice not to attend. Any expected “boost” to numbers attending mediation may undermine its perceived effectiveness because individuals are only attending “because they have to”?

Despite the potential cost there remains a large proportion of people who say given the choice they would prefer to have their own experienced family lawyer.