Rachel rothwelluse

Rachel Rothwell

Dominic Raab is in the market for something ‘drastic and bold’. Our new justice secretary is concerned that, for family cases not involving safeguarding or domestic abuse, ‘it should not be so easy just to say we will go to court’.

Appearing before the Commons Justice Committee last month, he added that while these were ‘sad and sometimes tragic family break-up matters’ that often involve children, ‘we want to make better use of ADR and mediation, and we need to reconcile the incentives for both going to ADR and going to court.’

Is it really so ‘easy’ to go to the family court? I doubt many parties would describe it that way. It is certainly not speedy – and indeed the huge backlogs are part of the problem that Raab will be trying to solve. According to the government’s latest statistics, which cover April to June 2021, it now takes 41 weeks on average for private law cases to reach a final conclusion. In divorce proceedings, it takes on average nearly a year (50 weeks) from petition to decree absolute.

But the real worry is in public law cases, which deal with issues such as whether a child should be taken into care. Care and supervision cases are now taking a shocking 44 weeks on average to resolve; the longest since 2012. Only 22% of these were disposed of within the 26-week limit that was set out in the Children and Families Act 2014.

Clearly, something needs to be done – and the government seems convinced that the answer to clearing the alarming public law backlogs is to coax and jostle the bulk of private family law matters out of the court system and into ADR.

But is that a fair approach? True, many cases currently going to court may well be better suited to mediation, and the parties involved – and their children – could achieve a better outcome, with much less stress and anxiety, by going down that route. But this will not be true in every case; and it is important that people still have a genuine opportunity to go to court and have their matter decided on by a judge. Mediation should never be the only real option.

For the Gazette’s readership, the best way to reduce family court backlogs and increase voluntary engagement with mediation is blindingly obvious – bring the lawyers back in. When the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) took most private family law cases out of the scope of legal aid in 2013, the number of parties opting for mediation went down, while the number headed for the courts went up. This was the precise opposite of what the government had hoped would happen, of course. But it came as no surprise to family practitioners.

What every family lawyer knows is that the earlier they are involved in a case, the better for clients – and for the courts. Solicitors give clients that all important reality check, explaining the hurdles they face, the prospects of success, and the limitations and frustrations of the court process.

Family lawyers have no hidden agenda of encouraging clients to litigate so they can stuff their pockets with fees along the way. Solicitors will guide clients towards mediation whenever that is the best option for the client; and where the circumstances are better suited to litigation, the presence of legal representation ensures that the case will take up less court time, and be much less frustrating for the judge.

Let us be realistic, however. The government is not about to turn back the clock to those rose-tinted pre-LASPO days, with modest legal aid funding granted throughout the life of a private family law case – even though that brought huge benefits to the courts. But the current system, which leaves so many families floundering without access to legal advice at any stage, cannot be allowed to continue. Adults and children are being let down and the courts are struggling to cope.

So if the spending pot available for funding proper legal advice is limited, then it needs to be shrewdly targeted; and it is at the very first stages of a case that a solicitor can offer the maximum benefit. Raab should therefore listen keenly to the Justice Committee’s recommendation, in its July report on the future of legal aid, that the government should pilot and develop an ambitious ‘early advice scheme’ to make sure people understand their rights and are pointed down the best path.

Allocating a relatively small sum to fund that crucial initial legal advice could hardly be described as ‘drastic’, and is not particularly ‘bold’. But it is undeniably common sense.