Family law in 2016: the bad bits

Family Law|December 21st 2016

It is traditional at this time of year to write a review of all that has gone on over the previous twelve months. On this occasion I thought I would try something a little different from the usual chronology of important events. Instead of just trawling through those events in a couple of posts I am going to pay homage to the trauma of 2016 by setting out in this post all of the bad things that have happened in the world of family law this year. Then tomorrow, to end on a more upbeat note, I will set out the good things that have happened (provided, of course, that I can find any).

So, to the bad bits of family law in 2016. Where to start?

Well, I suppose the biggest story is the continued increase in the workload of the family courts, and the pressure that that is putting on the system. Barely a month passes without Cafcass reporting an increase in the number of both care and private law applications. Care applications have been running at record levels, prompting Cafcass to enter talks with the government to look at ways to reduce the number of applications being made for children to be taken into care. The difficulties caused by the increased workload have been noticed beyond the family justice system. In November the Lord Chief Justice Lord Thomas published his annual report, in which he drew particular attention to the volume of public and private law cases before the Family Court, calling it a “major concern”. As he stated, the President of the Family Division Sir James Munby went further, saying that the increase in care applications meant we faced “a clear and imminent crisis”. Will the system manage to struggle on, or will it grind to a halt? Perhaps the crisis will come to a head next year.

Of course, a big part of the problem facing the family courts is the increased number of litigants in person (LiPs) due to the legal aid cuts, another matter pointed out by the Lord Chief Justice, at his annual press conference on the 30th of November. As he explained, this is causing real difficulties for judges and court staff, who are having to deal with huge quantities of paperwork emanating from LiPs, no doubt much of it irrelevant to the issues (no disrespect intended to LiPs). This, along with other problems such as having to explain procedures to LiPs, is causing cases to take far longer than they would if the parties were represented, thereby adding further pressure to the system.

And of course it doesn’t help that pressure when the Government insists upon closing yet more courts. On the 11th of February the Ministry of Justice announced their intention to close 86 courts across England and Wales. Since then the closure programme has proceeded, with the County Court at Tunbridge Wells, one of my old haunts, closing at the end of November. Despite the claims of Justice Minister Shailesh Vara to the contrary, this will inevitably make access to justice harder for many, in particular of course those who find it difficult to travel, for financial or other reasons.

Access to justice has been further hampered by the Government’s insistence upon increasing court fees, once more putting economics before justice. In March the fee for issuing a divorce petition increased by a huge 34%, from £410 to £550, despite the administrative cost of a divorce being just £270. In June the House of Commons Justice Committee said the rise was “unjustified”, and called for it to be scrapped. Sadly, but inevitably, their plea fell on deaf ears and was rejected by the Government. Accordingly, those unfortunate enough to have had their marriages break down will now effectively be expected to pay a tax for the privilege of getting divorced. If only we had a Government that cared about what is right and what is wrong, rather than simply about money.

Still with the courts, 2016 has been the first full calendar year in which the divorce centres have been operating. For those who are not aware, from July 2015 eleven centres were set up across the country, to handle all divorce cases. Thus, for example, if you are in London and the South East, you will issue your divorce petition at the Bury St. Edmunds Divorce Centre, which was expected to process a staggering 40,000 petitions a year. One of the major concerns that I and many other family lawyers had about the centres was whether they would have the resources necessary to handle such high caseloads. Well, I’ve seen some figures which appear encouraging, but on the other hand there has been an awful lot of anecdotal evidence suggesting unacceptable delays. There has also been evidence that many petitions have been rejected for spurious reasons, suggesting that the staff at the centres may not be as well trained as they should be. Whatever, these things clearly need to be properly monitored.

Moving on, another consequence of the legal aid cuts has been the closure of child contact centres, due to the fact that most of the referrals to the centres are made by solicitors and many litigants now do not have solicitors and simply do not know of the existence of contact centres, so there are no longer enough referrals to make the centres viable. I wrote here in July about the news of the closure of another centre. As I said then, contact centres provide an essential service, and if they are to become a thing of the past then that will surely be a disaster for parents and children alike.

And what of our shiny new child maintenance system, freshly reformed with a new lick of paint from the Government? Has it at last been operating effectively in 2016? Well, no. In June single parent charity Gingerbread reported that hundreds of millions of pounds of child maintenance arrears owed to children were failing to be collected. Under the new system £52.5m has accumulated in maintenance arrears over a two and a half year period, with almost half of all non-resident parents in the system having some child maintenance debt. Later in the year Gingerbread accused the Child Maintenance Service (CMS) of neglecting the issue of collection of arrears. Further to this, as I said here on Monday, the new charges for using the system are deterring many parents in need from using the system. And before I leave the subject of the child maintenance system I would urge you to read this post, about the comments of a caseworker at the CMS, lifting the lid on the reality of our failing child maintenance system.

Perhaps the most shocking news of the year came just this month, with two stories on the subject of domestic violence. First we were told by the Femicide Census that between 2009 and 2015 936 women were killed by men in England and Wales, 598 of them by their current or former partners. And then the Office for National Statistics published its latest release on domestic abuse, for the year to March 2016. The headline finding in the release was that there were an estimated 1.8 million adults aged 16 to 59 who said they were a victim of domestic abuse during that year. Domestic violence is truly an epidemic, and we must redouble our efforts to combat it.

Finally, I couldn’t possibly write a post about the bad things that have happened in 2016 without mentioning Brexit. There has been much talk about the effect of Brexit upon family law, particularly of course its effect upon international issues, such as jurisdiction in matrimonial disputes. Whilst this is a genuine cause for concern, it may ultimately be that little or nothing will change, with new national laws being passed to fill any gaps that appear. Still, whatever happens we will have to endure a period of uncertainty, and that cannot be a good thing.

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  1. Andre says:

    This is a very interesting read!

    Childcare care application has probably been the main booming sector in the UK since the very tragic death of Baby P! Let’s all hope since the Brexit vote, our government has reserved enough money to cope with the pending spike in family break ups that always happen when the economy takes a hit.

    Otherwise there may be social workers and even foster parents on strike as well.

    The reason there’s a huge spike in domestic violence is because Emotional or Psychological Abuse is now classified in this crime. Considering this with domestic violence qualifying legal aid, plus an economic downturn turn and 2017 will be the real show stopper!

    The scariest thing about an already flooded system is the reduced budgets for policing services… Therefore more vulnerable people will slip through the net because the police will be too busy attending calls to fathers waiting to collect their child from an unreasonable or scamming mother.

    The past 10 years has left the UK with 1/3 of children now alienated from one or both parents. This should have been viewed as a glaring indication that resources should be concentrated on cases that actually needed professional intervention.

    Instead the net has now been widened without increasing resources for all the supporting services. Cafcass has always manged to secure most of their requested budgets, but the policing services had theirs reduced. If you follow the process right to the end, every one even the prisons are now close to breaking point!

    2017 may be the watershed because:
    – Brexit will cause a spike in family breakdown
    – More people will be criminalised & consequently unemployed
    – Fewer prison places will be available
    – Further increased animosity amongst both parties living in the same community
    – The police services will be way too stretched
    – There’s a drastic widening of the term domestic violence
    – Naming and shaming peddlers of and or malicious allegations is now illegal, therefore there is almost no deterrent to stop false & malicious allegations

    This will probably be a much worst example of the government screwing up than the decision to close A&E units and not considering the impact of longer ambulance journeys and fewer beds.


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