As we reach the first anniversary of a ‘cultural revolution’ in family law, the complexities of people’s lives mean the reform process has a long way to go. Grania Langdon-Down reports.
April marks the first anniversary of the family justice reforms, heralded by the president of the Family Division Sir James Munby as the start of a ‘cultural revolution’. However, with family break-ups continuing to dominate the headlines, are the changes making a real difference?
Among the many provisions to come into force were: the single family court; compulsory mediation information sessions for all divorcing couples, unless exemptions apply; new child arrangement orders to replace the old ‘residence’ and ‘contact’ labels; and the 26-week deadline for public law care cases.
A year on, family lawyers argue that, while the reforms are the most significant for a generation, there are still too many barriers to achieving positive outcomes for separating couples.
The reforms also cannot be seen in isolation from the radical legal aid cuts in divorce, finance and child arrangements. These have been lambasted by a series of parliamentary committees, which said the Ministry of Justice had achieved the savings it wanted, but that the cuts were damaging access to justice and generating ‘knock-on’ costs for the courts.
Jo Edwards, chair of family lawyers group Resolution, says the next government should commit to a full impact assessment: ‘We know the cuts are here to stay so we need to work with judges and court staff to show the Ministry of Justice what isn’t working.’
At last month’s Gazette roundtable on family law (23 March), practitioners argued that the current system is not coping – pointing to an overburdened judiciary, inconsistent decision-making and the continued growth in litigants in person (LiPs). As James Pirrie, director of Family Law in Partnership, observed: ‘The courts are moving from trying to dispense justice into trying to manage numbers.’
Resolution has set out its own six-step Manifesto for Family Law, calling for: no-fault divorce; better protection for cohabiting couples; a parenting charter; reform of financial remedies; a form of family law credit; and legal aid extended to all forms of dispute resolution, not just mediation.
Support is certainly growing for no-fault divorce, backed last year by Munby. The deputy president of the Supreme Court Lady Hale, who, as a law commissioner, was behind the original, ill-fated move to ‘no fault’ divorce 20 years ago, has also called for an overhaul of the divorce laws.
The statistics highlight just how important it is to get the process right, with more than 118,000 divorces a year, just under half involving children younger than 16, and family breakdown costing the country an estimated £49bn a year.
Edwards paints a bleak picture: ‘We have a divorce system focused on blame; little support for vulnerable people going through a separation; restricted access to alternatives to court; a lack of financial clarity for couples on divorce; and no legal protection for people who split up after living together.’
While she says practitioners’ experience of the new single family court has been largely positive, the reforms have not come without consequences – the 26-week public law deadline has brought the average length of care cases down but it has affected the listing of private family law cases, something acknowledged by district judges (see box, p14).
So much change is inevitably having an impact on family practices. The latest quarterly figures for October to December 2014 show that the number of private law cases started was 10,382, down 11% compared with the equivalent quarter in 2013.
There were 10,464 financial remedy applications, 10% lower than a year earlier, and 9,997 financial remedy disposals, down 7% from 2013. This is the lowest quarterly number of disposals since 2009.
The number of cases where both parties were represented fell by 42% over the same quarter in 2013 and by 64% compared with 2012.
While some family teams have shrunk and there have been redundancies, Edwards stresses that practitioners are also showing resourcefulness in unbundling services and offering innovative fee structures and alternative dispute resolution options. She is keen to hold a ‘changing practices’ conference to share creative models – ‘it is naive to think we can stand still’.
One idea, she says, would be to roll out a Family Matters-type model with a streamlined process and the potential to make a modest profit.
Family practitioner Ursula Danagher recently joined national firm Thomas Eggar from Mishcon de Reya with the dual role of building its family practice and heading its private client group.
Many firms, she says, are facing a dilemma about family and where it fits into their commercial market: ‘One of the challenges is to attract clients you can help who can afford to buy your services.’
What is imperative is to have the right gearing, she says: ‘Family is a partner-led service but clients shouldn’t be expected to always pay for partner time. I will have a team of four below me – one eight years’ PQE, two three years’ PQE and a paralegal.’
She has set up four teams from scratch previously, so what differences does she see in setting up a team now? ‘Previously, we were busier with contested cases and focused on being the best we could using the court system,’ she recalls.
Lessons from Canada
The use of dispute resolution in private family law in Canada is making good progress through a combination of ‘smart government funding choices, smart legal aid choices and inventive dispute resolution professional choices’, according to Toronto lawyer Hilary Linton.
A trained mediator and arbitrator, Linton was guest speaker at a Resolution dispute resolution conference last year.
She tells the Gazette that the government in Ontario funds free in-court comprehensive mediation, using trained, accredited and insured mediators who prioritise the assessment of power imbalances and family violence.
The programme also funds highly subsidised longer-term mediation for anyone, whether in court or not.
Every court has full-time family court support workers, funded by government, who specialise in working with victims of domestic abuse.
‘Our legal aid programme has gone the other way to the UK,’ Linton notes. ‘We now have certificates specifically for parties in mediation and certificates for parties who want to retain a lawyer to negotiate a separation agreement. As a result, more of our mediation clients are able to obtain legal advice during mediation and to get help drafting agreements. We also have free legal advice and duty counsel available in courts every day. So this combination – even with the too-low income thresholds – is going a long way to enabling access to legal advice and, therefore, justice.’
The dispute resolution process is also becoming more responsive, she says, with new hybrid options such as ‘med-arb’ where the mediator becomes the arbitrator.
She says dispute resolution professionals recognise that much of what they are doing is unregulated and without common or transparent standards of practice, so they set up the Family Dispute Resolution Institute of Ontario to grow as a whole rather than in segmented groups.
‘It is a slow-growth, long-term investment that does not always pay immediate dividends,’ she says, ‘but [Ontario’s] government, to its credit, has seen the wisdom of making that investment.’
‘We are now facing a court crisis. The judiciary is completely overburdened and court services are being cut back. It is becoming difficult to use them appropriately for your clients, so we are looking at alternatives such as mediation and collaborative law.’
Today’s clients are also more sophisticated and demanding, she says: ‘You have to be much more adept at meeting their needs.’
The courts’ approach to the new child arrangement orders, with the starting point being equality between parents, is an ‘excellent step forward’, she says: ‘But in reality people who are likely to buy services from people like me have complicated lives.’
These families move round the world, and have demanding jobs and relationships to resolve. In intractable cases, the courts’ inflexibility towards the private end of the market is proving ‘really problematic and distressing’ because it takes so long to get matters before the court.
There has been a recent spate of headline-grabbing cases with judges criticising legal costs; telling ex-wives to get a job; and allowing a former wife to go back after 23 years to seek support from her now wealthy ex-husband.
One complaint from practitioners is that decisions are inconsistent and there is a ‘postcode lottery’ in terms of results. But how do you balance discretion with certainty?
‘We used unofficially to have a form of consistency, because the quality of judges was fairly high and they were dealing with cases every day so they had something to compare,’ Danagher says. ‘The problem now is the cases coming before the courts tend to be high-profile. This isn’t helpful because it gives the impression that the family courts are quite mad, when in fact they are consistently doing a good job a lot of the time.
‘It is also coming down to who has access to justice, and that is sometimes ruled by who has enough money and persistent lawyers, because the system is becoming overly complicated and narrow. We have to be careful that the system the international community recognises as a leading jurisdiction isn’t curtailed by being too budget-focused.’
Rachel Buckley is business development director and head of divorce and finance at the Family Law Company, the largest family practice in the south-west. Formerly known as Hartnell & Co, it rebranded in 2013 to reflect its specialist focus.
‘We saw the writing on wall over legal aid several years ago,’ she says, ‘so we positioned ourselves to grow our privately paying divorce and finance high-net-worth team and move lawyers into care and domestic violence, which still attract public funding.’
The firm has also developed specialist teams including international child abduction, helping unmarried couples with disputes rooted in land law and civil law, and helping grandparents maintain contact with grandchildren.
Concern for clients no longer able to get legal aid means the firm does ‘quite a lot of pro bono work, but we are a business and we have lawyers to pay’, Buckley says. The firm offers a low fixed-fee divorce and a subsidised low hourly rate, which can be bought in three-hour chunks. It has also set up outreach clinics in Bude and Taunton one day a week to help clients who would otherwise have limited access to specialist family law advice.
‘We have also aligned ourselves with firms which don’t have family law departments,’ she says. ‘They refer clients to us and we refer them back for commercial and conveyancing advice, wills and probate.’
View from the bench
The family court reforms are welcome but expediency must not be allowed to get in the way of justice, says Paul Waterworth, who retired at Christmas after 24 years sitting as a deputy and then a full-time district judge.
‘Judges should never be put in the position where they feel the system demands there must be an outcome sooner rather than later if later is the fair thing to do,’ he says.
A solicitor since 1968, Waterworth is now lecturing for Jordan’s Family Law as well as doing in-house training for law firms and chambers, and writing on legal topics.
‘It is no use judges bleating on that there must be more money – there isn’t going to be any more,’ he says. ‘The nearest I’ll get to being political is to say I wonder if the full extent of the consequences of the removal of legal aid was considered before the decision was taken purely on economic grounds.
‘What politicians have to decide is where the boundaries are for a civilised society. My concern is that if you go on cutting the available resources in terms of legal aid, judges, courtrooms and court staff, people will have less confidence in the law.’
He says judges are learning how to work with LiPs: ‘But let’s not kid ourselves it is going to produce better outcomes.’
Turning to the reforms, he says the single family court was ‘long overdue’. But he remains concerned by some of the new ‘excessively detailed’ orders and ‘frankly sometimes unworkable’ timetables.
Waterworth says listing is a real dilemma for court staff because there are not enough judges or courtrooms, and he acknowledges the difficulties for all parties if a judge is asked to take on a floating case at short notice. ‘I always felt that was unsatisfactory, but was it more unsatisfactory than the case being adjourned again?’ he asks. ‘I gave parties the opportunity to say if they didn’t want me to do it but, in most cases, I found they preferred having their case heard.’
So what will improve the situation? He believes the courts are being robust enough about encouraging mediation. ‘But it is unfinished business,’ he says. ‘People are suspicious of it, particularly if both parties are representing themselves because they are terrified of making any concessions for fear it will weaken their position.’
And what can practitioners do better? ‘I think standards of preparation, presentation and advocacy have probably gone backwards because the financial implications are pretty dire for firms.’
Practitioners are also building a range of dispute resolution offerings, with growing interest in family arbitration. While numbers are still small – 14 in the first quarter of this year compared with seven in the same quarter in 2014 – arbitration has been given a boost by Munby’s guidance on upholding awards in S v S  EWHC 7.
Danagher, who practises as a collaborative lawyer, says the jury is still out on arbitration. ‘The focus is on big-money cases involving top QCs and large legal teams using arbitration almost as a private court system. I am yet to be persuaded by it but I am open-minded.’
However, Grant Howell, family partner with London practice Charles Russell Speechlys and chair of the Forum of Family Arbitrators, notes: ‘Those qualifying as arbitrators are a really broad church, from former appeal and High Court judges to solicitors in small firms who say it is also well suited to small money cases.’
Earlier this year, London-based Hodge Jones & Allen (HJA) launched a fixed-fee arbitration service with a group of like-minded firms including Bindmans, Osbornes, Russell-Cooke and Farrers. It is aimed at middle-income families for whom the value of their property is likely to be their biggest asset.
HJA head of family Toby Hales says: ‘We need to think what clients want. The answer is they want it done quicker and to know upfront how much they will have to pay. Whisper it, but clients may be justified in feeling overcharged – not because we are all money-grabbers but because of the creeping doom of legal proceedings.’
Felicity Shedden of Shedden Family Law has done three such cases as an arbitrator and one as a lawyer. All had assets between £200,000 to £1m – ‘people who owned their own homes and had pensions but not big bucks’, she says. ‘Arbitration needs to build traction and credibility in everyday cases and then people will be willing to consider it in bigger money cases.’
So what are the financial and other benefits for a practice in recommending arbitration?
‘If you are looking at high-volume work,’ Shedden explains, ‘arbitrations are short and sharp so you can get your fee income in much faster than in the litigation process. It is much less counsel-led so solicitors feel more confident in conducting it themselves, so the fees stay in-house. This means a higher profit margin per case, much faster turnover for your cashflow and you can do more cases.
‘At the big-money end, a lot of the same work will still need to be done and you will still use counsel so there won’t be savings in terms of disbursements but, again, you will benefit from much faster turnover and cashflow.’
Clients who have a positive experience of the process will generate good recommendations and more referrals – ‘and that is worth its weight in gold in terms of business development and job satisfaction’.
But arbitrations do not come without risk. Shedden is pressing for proper provisions for screening for domestic abuse. In such high-pressure situations, arbitrators or the parties could be at risk physically. An arbitrator could also be liable if something kicks off or for a decision where a potential imbalance of power or abuse has not been identified.
Pirrie has participated in three cases as an arbitrator and two as a lawyer. One of the first collaboratively trained solicitors, he initially took a ‘fundamentalist’ approach that parties could not go from a regime built on self-determination to one where the outcome is determined.
‘But I now think that is a legitimate move,’ he says. ‘I have one example where there is just one last brick to go into the bridge and it would be crazy to lose all of that work which has been done collaboratively. The question is how you open up all that without prejudice discussion to the arbitrator. We are working on the basis that we don’t want the arbitrator to alter all that is agreed – we just want the last discrete item relating to historical support decided.’
He does not think lawyers have to stand down as they would if the case went to court, as long as the option is explained to clients from the outset: ‘The worry is people will get lazy and pull the trigger too soon to go for an imposed outcome. But we will get better at managing this with experience.’
The next step for Shedden is to develop a model for ‘med-arb’, which she has seen operate in Canada (see box). ‘I understand it is controversial here because, for us, the idea of a mediator subsequently becoming the arbitrator is completely alien. But it can work if it is carefully managed so the parties understand what they are signing up to and if there are really clear boundaries.’
With so much emotion involved in family separation, the Law Society has been working with the Bar Council and CILEx on joint professional guidelines for lawyers facing LiPs or McKenzie friends, which should be published before the summer.
Mark Paulson, head of family and social justice at the Law Society, says the guidelines discuss the extent to which a lawyer’s duty to the administration of justice may require them to provide assistance to a LiP, and whether this can be reconciled or will conflict with their duty to their client.
On McKenzie friends, he says: ‘Some will have an understanding of the court process, will be of genuine assistance to the other party and may be regarded by a judge as, at the very least, “better than nothing”. On the other hand, many lawyers will have seen the damage that can be done by unqualified, uninsured and unscrupulous “professional” McKenzie friends, some of whom are charging higher fees than a lawyer. The other party is also left with no redress.’
The Society is also helping develop training for family advocates in dealing with vulnerable parties and witnesses, amid growing moves to involve children more closely in both the court process and mediation – though Paulson says ‘it is not at all clear’ where the resources for the practical support and training that will be needed will come from.
Shedden has completed the direct consultation with children training but has yet to put it into practice. ‘I have very mixed feelings about the process,’ she says. ‘It’s a very nuanced and potentially trap-filled area. The training suggests the mediator meets with the child and feeds back only what the child allows you to – but I am very uncomfortable about withholding secrets from the parents.’
While mediators will still have the normal child-protection duties if they feel the child is at risk, she says: ‘What is hard is where the child says “don’t tell dad but I hate my stepmum and feel she resents me”. How do I go back into the mediation keeping that a secret from the parents? If I am mediating I would be more comfortable if a trained colleague did the consultation, fed it in and then had no more involvement.’
Munby said last year that the family justice system was ‘on the cusp of history’. What is clear is that the complexities of family life mean the reform process still has a very long way to go.
Grania Langdon-Down is a freelance journalist