Legal aid cuts will not undermine family justice, the head of the Family Division insisted last week as he mooted plans for judge-free divorces and greater legal rights for separating cohabitees.
When wide-ranging reforms of the family justice system came into force last month, the Law Society warned that the changes would be undermined by cuts to legal aid, increasing the number of litigants in person and adding to delay.
But asked by the Gazette last week whether he shared the concern, Sir James Munby (pictured) said: ‘The simple answer at present is no.’
He told a press conference: ‘The way one squares the circle between the increasing number of cases, the increasing time that cases take if there are litigants in person… and the availability of finite resources, is in principle simple and I believe achievable.’
He suggested the same steps that have been applied to speed up public law matters – including robust case management and changes in relation to experts – should be applied to private law cases. ‘We are already seeing the fruits of that process in the public law cases,’ he said.
In response to the increase in the number of litigants in person, Munby suggested the judicial process will have to be more ‘inquisitorial’, though he was at pains to insist it should not go down the route of the continental system.
He is also keen to encourage greater take-up of mediation. There is, he suggested, ‘almost a crisis in mediation’ which ‘should have been foreseen by the government’.
Outlining other possible reforms, Munby suggested consideration be given to taking divorce out of the hands of judges and making it a purely administrative process, that could be dealt with by a ‘registrar of births, marriages, deaths and divorces’.
Such a process, he said, would be appropriate only in cases of divorce by consent and where there were no children.
He insisted that changing the process would not make divorce easier or undermine marriage, noting that the law has permitted divorce by consent for some 30 years.
Munby was also keen to tackle the ‘injustice’ faced by cohabiting couples when they separate.
He said the unfairness of their having no legal right to the financial relief to which married partners would be entitled has been recognised by judges since 1973, but nothing has been done about it.
The public, he said, has ‘not been sold’ on mediation, but ‘steps are now being taken to remedy things’. He hopes that ‘once the message gets out that mediation is available and works’, take-up will increase.