Will the changes in family law be hindered by legal aid cuts?

5565752202_993b8149c2_mOn the 17th April 2014 I had the honour of writing for the firm’s main blog. In this post I covered the huge changes that swept across family law on the 22nd April 2014[1]. These changes include, amongst other things: the introduction of a single family court, the introduction of the Children and Families Act 2014, changes to the requirements surrounding Mediation Information and Assessments Meetings, child arrangement programmes, and the abolition of s.41 of the Matrimonial Causes Act.

The effects of these changes have yet to be seen but it would appear that some bodies are worried that the desired positive results are going to be hindered by the legal aid cuts that were implemented just one year earlier. As my regular readers are aware the legal aid cuts came in to force in April 2013 following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whilst the changes across family law followed the implementation of Children and Families Act 2014.

The Law Society president Nicholas Fluck has stated that ‘The Law Society supports the changes, but the problem for many separating and divorcing couples is getting access to legal advice to help them through the court process, or to find alternatives to court. The cuts in legal aid for family law have put people off from seeking advice and support from solicitors who can explain where they stand and what their rights are.’ He went on to say ‘the fact that more and more people are representing themselves in the family courts is leading to more delay… 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. In these cases a solicitor is required to protect a client’s interests and be on their side.’[2]

The Ministry of Justice have produced data indicating the impact of the removal of legal aid upon the courts in private family law cases since April 2013. Between April 2013 and December 2013, 34,249 individuals represented themselves within family law proceedings; this is an increase of nearly a third on the same period the previous year. The data also shows that within 52 % of child-related proceedings the parties were unrepresented. In addition to this the number of parties attending court has increased by 5% thus the legal aid cuts have far from discouraged parties from using the court. Based on figures received by Marc Lopatin of Lawyersupportedmediation.co.uk there has been over 40% less publically funded family mediations since April 2013 with the figures falling by 3,705[3]. Furthermore, Mr Lopatin states that ‘between April and December 2013, referrals from lawyers to mediators plummeted by 75%. Meanwhile, referrals to mediators from non-lawyer sources are so low they border on statistical irrelevance: UK-wide referrals from Citizen Advice Bureaus and other advice agencies account for just 3.5% of all referred cases.’[4] Richard Miller, Head of Legal Aid at the Law Society, stated that ‘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.’[5]

The problem is that the respective Acts have in fact served to cause a paradox. The Children and Families Act 2014 aims to reduce the number of parties entering into costly litigation and promotes mediation throughout the legal process and it would appear that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 aimed to do the same. However, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has caused somewhat of a predicament: how do we make parties aware of the possibility of mediation and alternatives to litigation when parties simply cannot afford to instruct solicitors anymore? I do not doubt that if faced with the decision between publically funded mediation and expensive litigation most parties would opt, if possible, for the former. However, if parties act in person solicitors cannot make them aware of the possibilities outside of litigation and the parties enter litigation with no understanding of the full range of opportunities available to them.

So what is the answer? Numerous solicitors across the country now offer free legal advice clinics which assist clients in the initial stages of their cases, allowing them to weigh up their options prior to issuing legal proceedings. Stowe Family Law operates a legal advice clinic which is a great success. In addition to the above, Mr Lopatin suggests that ‘it is about re-casting “Help with Mediation” to include a post-MIAM – but pre-mediation – meeting with an advising lawyer who can earn more than 150 quid to ensure decisions being taken at mediation are informed.’ Whether or not the paradox will be addressed in the near future is unknown but for now it remains in place and parties remain somewhat unaware of their options.

[1] Huge Changes Sweep Across the Family Law Sector, Zoe White, http://www.marilynstowe.co.uk/2014/04/17/huge-changes-sweep-across-the-family-law-sector-by-zoe-white/

[2] Benefits of Family Law Changes Undermined by Legal Aid Cuts, Family Law Week, http://www.familylawweek.co.uk/site.aspx?i=ed129193

[3] Lawyer Supported Mediation, Marc Lopatin, http://lawyersupportedmediation.com/blog

[4] LIPs, Lawyers & Mediators: never the twain shall meet?, Marc Lopatin, http://lawyersupportedmediation.com/blog-posts/lips-lawyers-mediators-never-twain-shall-meet-2

[5] Legal aid cuts hit Family Court, Yorkshire Law Society, http://www.yorkshirelawsociety.org.uk/2011-08-19-13-59-20/daily-legal-news-summary/239-daily-legal-news-summary-23-april-2014

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