It’s been a funny old week, with family law stories emanating from a number of sources, including this blog and a radio soap opera.
To begin, the latest quarterly statistics on activity in the legal aid system for England and Wales, for the period October to December 2015, have been published by the Ministry of Justice and the Legal Aid Agency. Amongst other things, the statistics showed that the number of mediation information and assessment meetings (MIAMs) has halved compared to the level they were at prior to the abolition of legal aid for most private law family matters in April 2013. Mediation starts also fell by a similar proportion to MIAMs following the legal aid cuts, but have recovered somewhat and are now around 60 per cent of the level prior to the cuts. Similarly, the number of agreements reached in mediation has stabilised at about 60 per cent of the level prior to the cuts. As I wrote here, all in all the figures must make pretty depressing reading for the government, whose big idea to plug the hole left by the abolition of legal aid was to promote and encourage mediation as a way of resolving family disputes, thereby doing away with the need for the parties to embark upon contested court proceedings. Quite simply, that policy has been a failure.
Mediation is not, of course, the only alternative to contested court proceedings. There is also arbitration. However, as Marilyn Stowe has explained here previously , there may in addition be a third way: one family lawyer could advise the couple jointly. The lawyer, whose fees would be shared between the couple, would gather the necessary information and advise the couple upon how they could settle their case. It’s such a simple idea that, as Marilyn says, you wonder why no one has thought of it before. Perhaps it was just that we lawyers were all stuck in the ‘conflict of interest’ mind-set, having had it hammered in to us that we could not act for both parties in a dispute (that rule would of course have to be changed to allow for joint advice). I do think that there could be a market for such a service – like Marilyn, I recall often being asked whether I could act for both parties in a dispute (on one occasion I even remember my client bringing his spouse with him into my office, before I explained that I could not proceed with the interview). It’s certainly an interesting idea, and one that merits further consideration.
Moving on, the Family Justice Council has published a guide to sorting out finances on divorce. The guide, which is designed to help litigants in person, was produced in response to a recommendation by the Law Commission in 2014 that there should be greater clarity regarding the distribution of assets and the determination of financial needs on divorce and civil partnership dissolution. I’ve not read the whole guide, but a quick look suggests that it will indeed be very useful for litigants in person (and also, as has been said elsewhere, for practising family lawyers and courts). However, we must not let ourselves think that it could possibly replace proper advice and representation by a lawyer.
Now, I have never listened to The Archers, and nor do I have any intention of doing so (despite being nearly as old as the programme). However, I understand that it has been causing a bit of a stir of late with a storyline in which one of the characters falls victim to domestic abuse by her husband, to which she eventually reacts by stabbing him. As Marilyn Stowe explains here, the story has evoked conflicting reactions, with some praising the show for its depiction of this sensitive subject, and others suggesting that it encouraged abused women to resort to violence, rather than simply leaving violent partners. Not having heard the show, I can’t comment upon that, but it must surely be a good thing that this important issue be brought into the open and publicly debated.
And finally, an unusual case was reported this week: an application by a husband for a declaration under the Presumption of Death Act 2013 in relation to his wife. I can’t recall coming across one of these before. Obviously a very sad case, but also proof that family law does indeed deal with all aspects of family life.
Have a good weekend.