A system based on a fallacy

Family Law | 14 Oct 2014 1

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Over the weekend I read a couple of news stories that seem unrelated (save for the fact that they were both dealing with topical family law issues) but which, as I will show, are anything but.

The first story informed us that the house of Commons Public Accounts Committee had published its ‘early progress’ report on the child maintenance 2012 scheme. The Committee found, unsurprisingly, that there is a “worrying uncertainty” around the impact that the introduction of charges for statutory child maintenance services will have.

The second story related to the effects of the legal aid cuts, telling us that over sixty percent of parents are now without a lawyer when going to court to contest arrangements for their children. Again, not exactly surprising, given the abolition of legal aid last year.

What links these two stories? Well, they both relate to changes brought in by this government. Both of the changes were also driven by the present economic situation and the desire to reduce the cost of the family justice system to the public purse. In both cases an old, more expensive, system is being replaced with something that (it is hoped) will cost less to the taxpayer. But what really links the two stories is the government’s ‘big idea’ so far as the new system is concerned.

The ‘big idea’ is that instead of getting someone else to resolve their family law issues, the parties involved will resolve the issues themselves. So, rather than ask a court to sort out arrangements for children or a financial/property settlement on divorce, the parties will go to mediation and sort them out themselves. And rather than ask the Child Support Agency (CSA) – now replaced by the Child Maintenance Service (CMS) – to sort out child support/maintenance arrangements, the parties will agree those arrangements between themselves.

It all sounds so wonderful. Instead of costing the hardworking taxpayer lots of money, those awful people who have the temerity to separate from their partners will sort everything out themselves.

Except that they won’t. Or at least the ones that previously needed to resort to the courts or the CSA/ CMS won’t.

You see, I have some news for the government: the vast majority of people who were unfortunate enough to be involved in family breakdown always did try to sort out the legal arrangements following that breakdown by agreement (and, for the most part, the system encouraged them to do so). They would do so by negotiating directly between themselves, via mediation and, yes, most often by negotiating between lawyers. Only in a small minority of cases (generally considered to be about 10 per cent) did they have to resort to the courts or the CSA/ CMS to have the arrangements sorted out for them.

In other words, the courts and the CSA/ CMS are and always were only needed to resolve that 10 per cent of cases that can’t be resolved by agreement, usually because one or both of the parties are being unreasonable. It doesn’t matter how much you encourage or cajole those parties, they are not going to settle, and you won’t be able to do much to change that 10 per cent figure.

Those parties will still need somewhere to go to have things sorted out for them. Only now, if they go to a court they will not get legal aid, and if they go to the CMS they will have to pay for the privilege. Of course, this is no great hardship for those with money, but for those without, it can mean great hardship indeed – having to represent yourself in court or not going to court at all, and having to make do without child maintenance.

Of course, all of the above was perfectly obvious to the government before it implemented its new policies. Their task was to cut services whilst simultaneously persuading Joe Public that they were actually making things better. To do this they invented the fallacy that, by the miracle of those policies, human nature would change and everyone would in future behave in a sensible and amicable fashion, thereby magically saving the taxpayer lots of money. Unfortunately, magic doesn’t happen.

The blog team at Stowe is a group of writers 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. Nordic says:

      Years ago, when I realised I was going to get divorced, I started reading up on how the family law system and courts work in this jurisdiction. Increasingly alarmed as It gradually dawned on me what a primitive and archaic process I and my kids had become exposed to, one piece of advice really stood out. The advice was not to believe for one second that children actually is the paramount consideration. The author warned that anybody who bought into this myth would find it impossible to make any sense of the system which would appear completely irrational. If one was to have any chance of navigating the system effectively, it was critical to quickly recognise that money making is the true driving force. The author observed that the system in fact is highly rational when viewed through this prism.
      At the time I thought the author’s viewpoint a bit on the extreme side but now I know better. Money, not children, is the paramount consideration and this, John, is the real fallacy at the heart of the family law system.

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