2014 review part 2: justice for all

Family Law|December 23rd 2014

The first four months of the year brought great changes to the family justice system in this country. However, that did not mean that all who were to use the system found the justice they were seeking…

The tone was set by the architect of so many of those changes, the President of the Family Division Sir James Munby. In his judgment in Q v Q on the 21st of May he asked the justice secretary, Chris Grayling, to explain how a case involving a father’s contact with his son could proceed without legal aid. He did not see how the father, a convicted sex offender who speaks little English, could receive a fair hearing without proper representation, and said that: “fairness to the child can only be achieved if there is fairness to those who are litigating. There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child.” It would not be the last that Sir James had to say on the subject of legal aid.

Along similar lines, a freedom of information request in June revealed the huge increase in the number of unrepresented parties following the abolition of legal aid for most private law family matters in April 2013. Between April and December 2013 there were 50,443 unrepresented parties, a 57 per cent increase over the number for the same period in the previous year. Meanwhile, the proportion of unrepresented parties increased from 41 per cent in the period April to December 2012, to 57 per cent in the period April to December 2013.

Things did not get better either for parents seeking child support maintenance. On the 30th of June new regulations came into force which meant that most parents making a new application to the Child Maintenance Service would have to pay a fee. Single parent charity Gingerbread warned that the charges would deter many single parents from getting the help they needed, and that children would lose out. Sure enough, figures released later in the year would confirm that fewer parents were seeking help from the Child Maintenance Service.

The government’s big idea to sort out the mess caused by the abolition of legal aid was, of course, to encourage more people to settle their family disputes via mediation, for which legal aid was still available. However, the idea had not worked well, as the number of publicly funded mediations actually plummeted after the abolition of legal aid (the government had missed the obvious point that there were no longer legal aid lawyers to refer cases to mediators). Catching on somewhat late in the day a ‘Family Mediation Task Force’ was set up, with the job of increasing the uptake of family mediation. The Task Force published its first set of recommendations in June, including a campaign to raise awareness of mediation. I wonder how long it took them to think of that.

Moving away from the problems caused by the legal aid cuts for a moment, on the 25th of July the Ministry of Justice announced that children were to be given a greater voice in the family justice system. Specifically, we were told that the government had made the commitment that from the age of ten, children and young people involved in all family court hearings in England and Wales would have access to judges to make their views and feelings known. It all sounded so marvellous, save for the fact that the court already of course take the views of children into account.

Returning, inevitably, to the subject of the legal aid cuts, family lawyers’ association Resolution warned in July that the family courts system was at breaking point due to delays caused by unrepresented litigants and overstretched judges. The chair of Resolution said that she feared that a two-tier system of justice was emerging, where private clients who can afford it opt out of overcrowded, slow-moving public courts in favour of private arbitration hearings. The nightmare of one law for the rich and one for the poor was becoming a reality.

The case Q v Q went back before Sir James Munby on the 6th of August, alongside two other contact cases in which the mothers had legal aid and the fathers did not. In a remarkable move that was seen as a challenge to the government, Sir James stated that if the Legal Aid Agency refused to pay for lawyers to represent the fathers then, as a last resort, the cost would have to be borne by HM Courts and Tribunals Service, the body responsible for the administration of the criminal, civil and family courts and tribunals in England and Wales.

And finally (at least for this part of this review), figures from Cafcass indicated a sharp drop in the number of private law children applications, including a 36 per cent drop in July over the same month last year. The figures prompted prominent family lawyers to warn that separating couples may take the law into their own hands when trying to see their children, such as by abducting them, or they may simply give up. Was this really what our family justice system had become?

Photo of the Royal Courts of Justice by sjiong via Wikipedia under a Creative Commons licence

Author: Stowe Family Law

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