Written evidence from Lexis Nexis (AJ
55)
LEXISNEXIS
INSIGHT—THE
FAMILY JUSTICE
SYSTEM
This briefing paper was prepared by the LexisNexis
legal intelligence team.
Author: Geraldine Morris
BACKGROUND POINTS
1. Reform of the family justice system and spending
review cuts will alter the way that those on low incomes can access
justice.
2. The coalition government consultation on legal
aid funding closed on the 14 February 2011. It is anticipated
that family legal aid will be greatly restricted and no longer
available in the majority of family cases, unless there has been
recent domestic violence or the proceedings relate to a local
authority application in relation to children.
3. The likely cuts in family legal aid availability
follow the judicial review of the Legal Services Commission's
tendering process in 2010 which had cut the number of firms able
to offer legal aid from 2,400 to 1,300. The High Court ruled that
the tendering process was "unfair, unlawful and irrational".
The Law Society argued the tendering process was so flawed it
threatened to create "legal aid deserts" around
the country.
4. Citizens Advice Bureaux and law centres are
experiencing funding cuts. The Ministry of Justice's impact assessment
shows that cuts will result in voluntary organisations that provide
legal aid losing 77% of their legal aid income.
5. It was announced in December 2010 that nearly
one third of magistrates' courts (93 out of 300) and 49 county
courts would close. Plans to build new courts have been cancelled.
6. The changes come about at a time when the
family justice system is tackling the most significant overhaul
of the procedural rules governing family proceedings in the last
20 years with the introduction of the new Family Procedure Rules
2010 (FPR 2010) taking effect from the 6 April 2011. At the time
of writing a number of key practice directions linked to the rules
are still awaited.
7. The new FPR 2010 includes a protocol which
provides for all applicants who wish to issue relevant family
proceedings to show that they have either attended a mediation
and information assessment meeting with a mediator or that they
are exempt from doing so. The protocol takes effect from 6 April
2011 but as yet the definition of a "mediator" has not
yet been made available.
8. In 2010 a Family Justice Review was launched
to examine the effectiveness of the family justice system and
the outcomes it delivers, and to make recommendations for reform.
The call for evidence closed in September 2010 and an interim
report with recommendations for reform is expected in spring 2011.
9. In January 2011 the Law Commission issued
a consultation paper Marital Property Agreements (Law Com
198) in relation to pre-nuptial, post-nuptial and separation agreements.
The paper sets out a range of potential issues and options regarding
marital agreements. The Law Commission has requested responses
to the paper from members of the public, the legal profession
and other interested parties. The consultation closes on 11 April
2011.
IMPACT OF
HANGES
10. There has been a strong growth in the number
of parties to family proceedings who are unable to obtain legal
representation and act as "litigants in person". Legal
aid cutbacks, the introduction of the new FPR 2010 and court closures
will particularly impact on litigants in person, with the resulting
effect of more court time being needed to deal with cases in which
the parties are not legally represented, further increasing already
long waiting times for hearings.
11. Delays in children proceedings may mean that
vulnerable children are affected by delays in care proceedings
in England and Wales. In private children proceedings (i.e. between
parents regarding residence and contact) delays in obtaining reports
from the Children and Families Advisory Service (CAFCASS) and
limited court resources are also leading to delays.
12. It has also been reported that there are
significant regional differences in county court proceeding times,
examples given include 65 weeks in London compared to 46 weeks
in Humber and South Yorkshire producing a "postcode lottery".
Court closures and limits on legal aid are likely to exacerbate
this.
ALTERNATIVES METHODS
13. Alternative Dispute Resolution (ADR) methods,
including mediation, in family proceedings are an alternative
method of providing access to justice.
14. ADR cannot be a universal panacea - not every
family case will be suitable. Examples of scenarios which may
arise from the new mediation protocol are:
cases of domestic violence—the mediation requirement
does not apply where there have been domestic abuse allegations
leading to police investigation or the issue of civil proceedings
within the preceding 12 months. This does not address cases where
either the domestic violence or abuse has been unreported but
nonetheless would make mediation unsuitable because of issues
between the parties and the concerns of the victim or where the
domestic violence occurred more than 12 months ago but was no
less serious than more recent domestic violence; and
cases where a party may pay "lip service"
to the concept of mediation but with no real intention to resolve
issues via mediation.
15. In addition the lack of information regarding
the experience, training and professional standards of mediators
who may run mediation and information assessment meetings is a
concern at this late stage prior to the introduction of the protocol
on 6 April 2011.
16. The cutbacks in legal aid may lead to some
parties taking a more reasonable approach and reaching a settlement
either directly with the other party or with the assistance of
ADR. Inevitably, there will be cases which cannot be settled for
a number of reasons. In private children cases the consequences
may be an increase in the number of children who have no further
contact with a parent. In financial cases, lack of agreement may
lead to housing issues, more welfare benefit claims and a greater
number of children living below the poverty line. This means that
the advice that such families may need on housing and welfare
benefits will be less available.
REFORMING FAMILY
LAW
17. There is a lack of reform regarding some
key areas of family law. The President of the Family Division,
Sir Nicholas Wall, recently called for reform to the law relating
to cohabitants and stated that women cohabitants, in particular,
are often severely disadvantaged by being unable to claim maintenance
and having their property rights determined by the law of trusts.
In addition the President recently noted in a case involving £25
million that "it seems to me unfortunate that our law
of ancillary relief should be largely dictated by cases which
bear no resemblance to the ordinary lives of most divorcing couples
and to the average case heard, day in and day out, by district
judges up and down the country." The recommendations
of the Law Commission on marital agreements in due course will
hopefully bring much needed clarity for those parties who have
sufficient assets to make such an agreement warranted; for those
without, their access to family justice will be limited.
February 2011
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