Unrepresented parties become the majority in family cases
More than half of all parties in child-related cases are unrepresented, data reveals today as the main part of family justice reforms come into effect.
Today sees the implementation of many of the provisions in the Children and Families Act 2014, including the single family court, a 26-week time limit for care proceedings, compulsory mediation information meetings (MIAMs) for separating couples and measures to limit the use of expert evidence.
Plans in section 11 of the act to introduce into statute the concept of ‘equal parenting’ when couples separate, have been delayed until the autumn. The Ministry of Justice said this is to ‘allow time to raise awareness and understanding’ of the change, and will ensure ‘wider support is properly bedded down’ before its implementation.
The Law Society expressed support for the changes, but warned that the benefits will be undermined by legal aid cuts.
Law Society president Nicholas Fluck said that following the cuts many separating and divorcing couples cannot get access to legal advice to help them through the court process, or to find alternatives to court, causing delay as they have to represent themselves.
Meanwhile, MoJ data shows the impact on the courts of the removal of legal aid in most private law family cases in April 2013. The number of unrepresented parties, either parents or grandparents, in child-related proceedings has increased year-on-year by a third, from 25,656 between April and December 2012, to 34,249 between April and December 2013.
In the most recent two months for which data is available, over half of all parties (52%) attending child-related proceedings were unrepresented.
The data, revealed in response to a freedom of information request by Marc Lopatin, founder of Lawyer Supported Mediation, shows that of the parties attending court in November 2013, 3,941 were represented while 4,174 were unrepresented. In December 2013 there were 3,481 represented parties and 3,840 unrepresented.
Despite the lack of public funding, parties are not deterred from using the court to resolve children matters; the number of parties attending at court has increased by 5% year-on-year.
Government plans to encourage parties away from the court appear to have failed. Figures given to Lopatin show a 40% fall in the number of publicly funded family mediations since April 2013, even though legal aid remains for mediation.
From May to December 2012, there were 9,216 mediations but that figure plummeted to 5,511 in May to December 2013.
Head of legal aid policy at the Law Society Richard Miller said: ‘The truth is emerging: far from stirring up unnecessary litigation between the parties, as was frequently falsely alleged as a justification for legal aid cuts, lawyers are very effective at steering separating couples away from the courts.
‘Without lawyers to resolve disputes less contentiously, more couples end up fighting in court, to their own detriment and that of the children of the families concerned.’
David Emmerson, head of family dispute resolution at London firm TV Edwards, said the family courts are heading for a ‘crisis point’.
‘The figures already show a marked increase in unrepresented parties and I expect this figure to worsen as the number of people with legal aid trail off,’ he said.
The thrust of the family court reforms being introduced today, said Emmerson, is to focus people on alternative dispute resolution – mediation and collaborative law. But he said the public needs to be made aware that such alternatives work, especially where lawyers are involved.
‘The government has a fear of lawyers in the process, but the more lawyers are involved, the more effective it is.’
Family lawyers’ group Resolution has called on the government to make public funding available for lawyers to provide initial advice in family cases, offering case analysis, screening for domestic violence issues and providing information about mediation options.
Sarah Thompson, partner at Australian-owned Slater & Gordon said that mediation should be more widely used.
‘It’s cheaper, quicker and less stressful than going to court in 95% of cases.’ But she said it has to be a voluntary process. She supported the introduction of compulsory MIAMs, but said the timing of the session ‘at the eleventh hour before a hearing’ is too late.
‘By that stage the parties already have the mindset of going to court and see mediation as an additional hurdle and expense,’ she said.
Fluck noted: 'Mediation can help couples avoid the stresses and strains of court hearings, but it is not suitable in all disputes, particularly those where one party is in a significantly weaker position than the other.’
TV Edwards and Slater & Gordon are among 30 firms taking part in a year-long pilot of Lopatin’s Lawyer Supported Mediation, which kicked off in four cities this month.
It aims to provide fixed-fee legal assistance and mediation preparation, plus drafting for under £5,000 and is designed to help separating couples and demonstrate to lawyers the commercial viability of the service.
Commenting on the figures, an MoJ spokeswoman said there have always been a ‘significant number’ of people representing themselves in court and judges have the expertise to support them.
She said the ministry is ‘committed’ to making sure more people use mediation and provides ‘millions of pounds of legal aid’ to enable them to do so. Overall, she said, the ministry is ‘closely monitoring’ the impact of legal aid cuts.