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Vilified for going to court

These days anyone in the government who says anything about family justice must, of course, ensure that they promote the virtues of mediation. True to form, last Wednesday Family Justice Minister Simon Hughes did just that. He was talking to the Family Mediators Association, so he knew he was on safe ground and that his words would be warmly received.

The words he chose to use, however, are interesting:

“It is not the sign of a civilised family justice system to have more and more people litigating in court whether with lawyers alongside them or not. A civilised system is to have more people resolving disputes away from the often confrontational atmosphere of the courtroom.”

The clear suggestion here is that you are not ‘civilised’ if you take your family dispute to court. I understand that this may not have been the intention, but that is how it feels, and it is not the first time that I have had this feeling when reading what Ministers have to say about mediation. The government, in its eagerness to save costs, appears to be encouraging a culture of vilification of those who go to court to resolve their family disputes.

Very few people, however, choose to go to court to resolve their family disputes. OK, there are a few who demand their ‘day in court’, but they are a very small minority. For most people, going to court to sort out their private family matters is the last thing they want. However, sometimes there is simply no alternative.

In some cases the other party refuses to engage in mediation. In some cases every reasonable effort to resolve the matter by agreement (whether using mediation or otherwise) simply fails. In other cases, mediation is not appropriate, for example due to previous domestic violence. In all of these instances, the parties must have a means of resolving their disputes, and that means is going to court.

There should be no stigma in going to court. It’s bad enough that you should find yourself in that situation at all, without feeling that the powers that be are sneering down at you disdainfully, as if you are some sort of failure.

Even if it does not stigmatise those who go to court, the endless anti-court rhetoric from government Ministers introduces an element of compulsion to mediation: you really should go to mediation, and bad things will happen if you don’t. However, mediation by its very nature is not about compulsion. And those cases in which the parties feel compelled to go against their wishes are almost bound to failure, adding to the expense and time taken to resolve the matter.

There is, of course, a serious fallacy in Mr Hughes’s argument. The obvious implication of what he says is that up until now many cases that could have been resolved by agreement went to court instead. The reality, though, is that with the help of lawyers (preferably on both sides) the vast majority of cases always have been settled out of court – only about ten percent of cases need to be adjudicated upon by a judge. At least until recently. It is only since the Government took away legal aid that “more and more people” are “litigating in court”, and the reason for that is that more have not had lawyers and fewer cases have therefore been settled.

The simple fact of the matter, though, is that most people do try to resolve their family law disputes by agreement. Most of them are successful, but we should not be critical of those who are not, or of those for whom mediation is not appropriate. They have a right to use the courts, and there is nothing uncivilised about that – quite the contrary, in fact.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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  1. Paul Apreda says:

    I think I’m just going to have to unsubscribe from your site. Those who know me would say that I am the most easy going individual they know but frankly the growing number of utterly amazing posts makes me realize that there is no possibility of change in the Family Justice arena without the strongest of action to overcome entrenched attitudes in the Courts.
    The overwhelming impression of the Family Justice system is that it is a chaotic mess incapable of finding a common sense approach to resolving the problems faced by families. Paradoxically the law is actually very clear – the ‘best interests of the child are paramount’ AND parents with PR have certain rights and duties towards their children. However – despite many hundreds of thousands of cases that have been heard since the 89 Act there is no agreed definition of the paramountcy principle – which means that every case is treated as being different perpetuating an industry of extensive ‘legal’ debate, report writing and failure to act clearly and simply to deal with the issues. I’d like to see parents with PR whose contact with their children is blocked by a controlling ‘main carer’ sue that person for damages for infringing their PR. I’m sure it wouldn’t work – but then neither does the current mess. I am 100% behind the UK Govt seeking to prevent people using the Family Courts. That is now the advice we give to hundreds of excluded parents & grandparents faced with the classic problems that your industry has signally failed to address for too long.

    From your comments John one would imagine that family lawyers were the answer. If that is the case then we should look again at the question.

  2. Nordic says:

    The fact that 90% of cases do not go to a final hearing should be no comfort at all to anybody. 99% of the aggression and acrimony happens outside the court room as lawyers set the couple or parents up against each other, often quoting their respective views of what a judge may or may not decide (and on my personal experience such statements are frequently completely wrong).
    While I agree with Paul’s sentiment, I think your analysis is wrong. The government is not trying to keep people out of the court room, nor are they really trying to put a stop to the financial exploitation of families. Mediation is all well and good, but if you really want to stop the money machine family law has become in this jurisdiction, you need to legislate to remove uncertainty and with it the scope for lawyers to create conflicts of interest. And if there is something parliament has failed to do in the past 50 years, it is to impose its will on this, the most important public policy area of all. Parliament could easily remove most if not all aspects of financial relief proceedings from the legal battle altogether. Many other jurisdiction have done this decades ago primarily through legally binding matrimonial asset regimes and more adult and egalitarian approaches to spousal maintenance. If you prevent people from fighting, you do not need judges, lawyers or mediators (or legal aid, for that matter). Such legislation would kill 2/3s of the family law industry over night. Asset division is the oil in the money machine.
    So don’t be angry at John. He is just defending his industry’s own vested financial interests and his posts should be read with this in mind. When an industry is spinning out of control, be it investment banking or family law, it is the politicians who we elect to represent and protect society’s wider interest who should be blamed. By its total inaction, Westminster has completely abdicated its responsibility to both adults and children across these isles. This is where to root of the problem lies and where the blame should be directed.

  3. Luke says:

    “The clear suggestion here is that you are not ‘civilised’ if you take your family dispute to court. I understand that this may not have been the intention, but that is how it feels……….”
    No, it is not the ‘clear suggestion’ and there is no reasonable way to infer that it is. You are trying to apply what he said to individual cases and he is referring to the aggregate. How you ‘feel’ about it if it is not related to the facts of what was said is irrelevant.
    Even if it does not stigmatise those who go to court
    Nobody except you is suggesting that it might stigmatise those who go to court ! I have never heard of such a suggestion by anybody and you seem intent on knocking down a straw man.
    It is hard to see past what Nordic has said – you seem concerned that a further decrease in the number of cases going to court will reduce income to Family Lawyers and that appears to be what is really annoying you.

    • Paul Apreda says:

      Luke is right. I’d like to refer John back to the statement made by Simon Hughes MP reported in the Daily Mail in April of this year – ‘I want lawyers out of the process as much as possible’. This is the agenda and I suspect it is likely to be effective only when the system no longer runs for the benefit of lawyers, judges and HMCTS. I continue to ask the question – what does the ‘S’ stand for in HMCTS? Litigants pay £215 for a ‘service’ which treats them as a problem. It would be akin to the NHS being run for the benefit of the doctors & nurses – who regard the patients as the biggest problem they face.

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