A week in family law: legal funding and more

Family Law|Industry News | 9 Jan 2015 1

Well, actually rather more than a week. I’ve not done one of these ‘weekly review’ posts since the 19th of December, so the following includes a couple of stories that cropped up over the Xmas/New Year period.

The Ministry of Justice has published figures showing that the number of family mediations getting underway in the third quarter of 2014 was still 46 per cent down on the level prior to the abolition of legal aid. The figures do, however, show that there has been a 20 per cent rise in the latest quarter compared to the same period in 2013. I’m not sure whether this is bad news for the idea of mediation replacing legal aid or good news. I suppose it depends upon your point of view. One thing is certain, though: the Ministry of Justice is still pushing mediation, even sending out promotional material for it this week. Unfortunately, much of that material, as with so much mediation promotion, suggests that mediation is the only alternative to court. Of course it is not – it is perfectly possible to settle a matter without going to mediation, as was the case with the vast majority of the matters I dealt with whilst I was practising.

Baroness Deech has said that divorce laws should be tougher on women. In an interview with the Financial Times she argued that young women are being effectively dissuaded from pursuing careers, as finding a rich man is all they need to do under the current system. Quite where all these rich men and all of those mercenary young women are is not clear. However, a clue as to their whereabouts was mentioned in the interview, when the Baroness referred to going to ‘an Islington dinner party’, where “people will tell you the most horrendous stories” about divorce. I will leave the reader to draw their own conclusions…

The wonderful new annual tradition that is ‘Divorce Day’ has taken place, although the exact date upon which it was celebrated is not entirely clear. For those lucky enough to have missed it, ‘Divorce Day’ is the first working day of the New Year, when supposedly more people instruct solicitors to commence divorce proceedings than any other day, although whether it is a real phenomenon is matter for debate. Of course it may, as some have suggested, have become a self-fulfilling prophesy, with the media coverage encouraging people to untie the knot at this time.

Moving on to more important matters, in K & H (Children: Unrepresented Father: Cross-Examination of Child) Judge Bellamy ordered that Her Majesty’s Courts & Tribunals Service (‘HMCTS’) should pay for an advocate to cross-examine a child on behalf of the father. The father was unrepresented and the child had made an allegation that she had been sexually abused by him. This is not the first time that it has been suggested that HMCTS should bear the cost of representing a party who was not previously represented. The difference, however, was that here the father was financially ineligible for legal aid, but Judge Bellamy considered that he could still not afford to pay for representation himself. Is this stretching the argument for state-funded representation too far?

Hot on the heels of K & H, the President of the Family Division handed down his second judgment in the case D (A Child), in which parents faced with the possibility of having their child adopted against their wishes could not initially get legal aid to be represented in the proceedings. The judgment included the memorable (and already much-repeated) sentence: “The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane.” Quite.

Lastly, some details have emerged regarding the centralisation of divorce processing in England and Wales. It would appear that Bury St Edmunds has been identified as the likely venue for the London and South East Centre, although consultation has not been completed. This has led some to suggest that it could be the death knell for London as the divorce capital of the world. Shame.

Have a good weekend.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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    1. Rachel says:

      So if something affects only wealthier members of society, it’s is to be ridiculed and dismissed?? You don’t have to be very rich or live in Islington to be subject to the gross unfairness that divorce courts dish out on a daily basis. Men who earn relatively modest wages are forced into joint-lives maintenance agreements, which force them to be responsible for their ex-wives FOR LIFE, whilst the ex-wife bears no responsibility to improve her earning capacity and gain financial independence. These joint lives recipients are entitled to post-marital gains and gains from second marriages. Second marriages have no entitlement to privacy as every financial change is accompanied by the need to return to court with Form Es. Maintenance payers cannot make any financial choices unless they have tens of thousands of pounds to go back to court to seek a variation.

      Baroness Deech does not only speak for the wealthy of Islington, she speaks for every moderately successful man who does a hard days work for honest pay, yet is forced to hand over his money to ex-wives who make different choices. Creating certainty through pre-nups and time limiting maintenance in very case is only way to create fairness for all.

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