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Negotiating the family law minefield

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Q: How do recent family law changes affect how a separating couple sort matters out?

This was first published in the Wigan Observer on July 1st 2014.

A: The hot family law topic debated over the last 12 months has been the removal of Legal Aid for the majority of private family law cases and how if at all, it would impact upon the family law system. Introduced in pursuit of austerity, the cuts were given an air of respectability under the worthy guise of persuading separating couples to sort out their differences away from court via mediation.

Facing criticism that the cuts made were oblivious to the concerns of numerous “coalitions”, interest groups and experts, the Government pressed on with their reforms. Evidence from the last couple of weeks point to what a detrimental impact the cuts have had.

Domestic Abuse groups complain that vulnerable individuals are unable to get the necessary “evidence” to enable them to access what Legal Aid is left available, meaning approximately half such people cannot receive funding to pursue their case.

Senior Family Judges express their concern about the increase in delays on court waiting lists now being caused by a massive increase in Litigants in Person, when the opposite had been predicted by Government. For example, although there seem to have been a large decrease in cases by parents seeking contact with their children, 50% in May compared to 2013, the cases remaining are taking far longer and Legal Representatives are now described as “a rarity”, which by their personal and emotional nature are some of the most complex a court will face. Such delays cost money, maybe more money than is “saved” by the cuts in the first place, because less cases are now taking up more court resources.

And mediation services close their doors.

To the “hardworking tax payer” these problems may seem a little remote, until of course help is needed by someone facing family difficulties about which they have no idea where to start!

The Government might point to the reduction in children cases as “proof” the medicine is working but anecdotal evidence seems to be that individuals or couples are simply not bothering pursuing a case because they don’t know how to or can’t afford it. They certainly aren’t sorting it out via mediation as was hoped.

Inevitably this will mean children not seeing a parent or individuals not being able to sort out a satisfactory financial arrangement following separation, the government ironically picking up the tab in increased benefit payments to some to make ends meet.

On 24th June the Government released it own figures via the Ministry of Justice which highlight just how acute the problems are and an indicator of the difficulties that might be stored up for the future. The MOJ figures show that in the 12 months since April 2013 there have been reductions of 56% for mediation assessments, 38% for mediation 'starts' and 27 per cent in final agreements respectively, which all points to the fact that thousands of  fewer couples are receiving appropriate family lawyer referrals to mediation.  

For the first time more women than men find themselves without a family lawyer within proceedings, despite being more likely to be the parent with the greater share of care of any children or having the smaller income. These unfortunately are real people, not a number on a government spreadsheet. A parent who’s “contact” has simply stopped, facing months of waiting to get the matter before a Judge, or face accepting an “offer” to resolve financial matters which they know really won’t meet their needs.

The proportion of mediation sessions ending in agreement has actually increased and is close to 4/5th’s of couples, which superficially may point to the success of mediation, but could also just be an indication that those taking part, by a process of distillation, might have been more likely to “reach an agreement” any way. This process has now become obligatory. It will be impressive is success rates are maintained.

In an effort to adapt to the challenges the President of the family courts has proposed to change the way in which the court deals with uncontested divorces, so they would be dealt administratively, with a view to cutting down the courts workload and concentrating resources on more complex cases.

Another welcome initiative aiming to reverse the trend, with which we as a firm are involved, is the Lawyer Supported Mediation pilot where couples will be able to access a “team” involving a trained mediator and experienced but independent Family Lawyers, with a view to working together in finding common ground and hopefully agreement. It is hoped that by having a like minded group to keep a couple in discussions, even the most reluctant individual might be willing to give mediation a go.

By Chris Fairhurst, Associate solicitor in the family law team