In the first of a two part feature, solicitors from Stowe Family Law LLP reflect on significant developments in family law during 2013.
On 1 April 2013 the Government removed legal aid for the majority of private family law cases.
At a stroke, legal aid was no longer available for divorce and separation, disputes about children, financial remedy proceedings, as well as any advice or action in relation to related matters such as separation, co-habitation and pre- or post-nuptial agreements.
The result was fully anticipated by lawyers and social services, but not, surprisingly, by the Government. Thousands of people have been denied access to professional legal advice, vital in enabling them to resolve important and far-reaching family issues.
Another knock-on effect, one we saw almost immediately was an increase in litigants in person, and the resulting strain on courts already struggling to cope with the volume of cases that need to be dealt with.
It seems that the price to be paid for some expedient short term savings is an immeasurable strain upon the courts. Suddenly many people lack access to justice, and we must also consider the hidden costs of family breakdown – on the health services dealing with ill health and sickness; on employers dealing with absence from work and loss of productivity; and on the Police, who must deal with an increase inviolence as a result of there being no accessible recourse to justice.
This one single measure has done more to damage and undermine the British legal system than any other measure and it is a tragedy for justice.
I suspect we will eventually realise that the unquantifiable cost to society of the legal aid cuts will far outweigh the short term savings.
Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. A long-standing member of Resolution, he is also a member of the Law Society’s Family Law Panel, which means his expertise in family law has been rigorously and independently assessed and accredited. Mark has specialised in family law for more than 30 years and provides clients with a wealth of practical experience.
There has been a substantial fall in referrals to mediation this year. It’s hardly surprising. Mediation is introduced far too early for most, for people are not emotionally or legally in a position to settle. Those who were eligible for legal aid before its abolition were required to jump through the mediation hoop – attend a MIAM and be assessed for mediation. This kept the figures high, but most who went through the process were not considered suitable anyhow.
Private paying clients in the main see no advantage in wasting time and money on a toothless process when for most, full frank and accurate financial disclosure and discovery will be required. You may think I’m anti-mediation. I’m not. I am for mediation at the right time. I’m also a fan of counselling. I’ve seen positive results from everyone who sees a good therapist.
So what I’d do, to keep the entire process as cheap and commercial as possible, is introduce consideration for counselling for everyone caught up in family breakdown, in the same way we now carry out MIAMs. This could be financed by the state in the same way legal aid is still available for mediation. I’d oblige each party to spend time with an experienced therapist to consider their suitability. For a relatively small fee, compared to the money that can be spent arguing in court, therapists will help each party get their head straight and get each party focussing on what’s important – i.e. the practical side and the future. Therapists can also help the one-time couple to shed all the useless emotion which will have built up inside them both. I’d do this because the vast majority of couples don’t think they would benefit but in fact they would.
I’d then introduce a sharper system for ancillary relief. This would still require a court to govern the process, but there would be a mandatory ‘stay’ (pause) after disclosure has been completed, for mediation. If either party refused, the case would proceed on to a final hearing but with the risk of a costs order tacked on.
Marilyn Stowe is founder and Senior Partner of the firm. With more than 30 years of experience handling divorce cases and family law proceedings, she is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.