It was reported by the Department of Education that Adoptions are at their highest since 1992. There were 5050 ‘looked after children’ adopted during the year ending 31 March 2014: this is a 26 per cent increase from 2013 and a 58 per cent increase since 2010.

What is a looked after child?

Under section 22 of the Children Act 1989 a child is ‘looked after’ if they are in the Local Authorities care or provided with accommodation for a continuous period of more than 24 hours, subject either to a Care Order as per S31 of the Children Act 1989 or subject to a Placement Order as per section 21 Adoption and Children Act 2002.

This increase is despite the 47 per cent decrease in ‘Adoption Decision Maker’ decisions between July 2013 and September 2014, as reported by the National Adoption Leadership Board in December of last year following the case of Re B-S. ADM decisions are made in the second stage of adoption when all checks on the prospective adopters have been reviewed and the panel have made their recommendations. It was felt by the Board that the judgement in Re B-S created a great deal of uncertainty and resulted in the release of a myth buster in response to the comments made in the judgement, with the aim of clarifying and de-mystifying the law in this area in the hope that adoption decisions would subsequently rise and thus adoption figures would rise in turn.

Whether adoptions will rise further is yet to be seen but the increase so far has been partly attributed to the Action Plan on Adoption which was published in March 2012 and sought to reduce the time taken for a child to be adopted. The Department of Education reports that the average time from a child initially being taken into care and their adoption has reduced by 2 months. It was further reported that although most looked after children (37 per cent) are aged 10-15, those aged one to four made up the highest proportion of looked after children to be adopted. Research carried out by the Family Finding Study found that placement stability and quality was a significant factor in successful placements and this was largely attributed to younger children having fewer behavioural problems.

What is evident from the report published by the Department of Education is that although great headway has been made vast improvements need to be made in order to ensure that as many children ‘looked after’ by the Local Authority are placed in permanent homes.

My name is Shanika Varga and I am a trainee solicitor at Stowe Family Law. My contribution to this blog is to provide an honest and open account of life through my eyes at Stowe. It will provide insight into life at the largest specialist family law firms in the country and my journey as a trainee solicitor through to qualification. I hope this is of help to prospective trainees and all long suffering law students/ aspiring solicitors.

More about me:

I graduated with a 2:1 LLB from the University of Keele and went on to study the Legal Practice Course at the College of Law York after taking a year out to work in the legal sector. I completed the LPC with a distinction in all subjects in June 2014 and began working Stowe in October 2014.

Whilst studying for the LPC I made the most of the pro bono opportunities available at the centre and found that doing so really helped focus my attention on not only what kind of firm I hoped to train with but what areas of law I enjoyed and was most suited to.

I have a keen interest in cooking, I love to read (especially now my reading list isn’t dictated by which exam I have coming up next) and I have just recently found a new love for upcycling furniture.

On the 17^th 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 22^nd 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.

On the 3^rd April 2014 the University of Bristol published a report entitled Beyond the Adoption Order: Challenges, Interventions and Adoption Disruption. This report resulted from one of the most comprehensive studies to be carried out on adoption in England for years. The study looked into adoption break down and analysed national data on 37,335 adoptions over a 12 year period. The findings suggest that adoption break down is significantly lower than expected with only 3.2% of adopted children leaving there adoptive families prematurely.  The reason for this, the report states, ‘became obvious when [they] met the families. The commitment and tenacity of adoptive parents was remarkable. Most parents, even those whose children had left, still saw themselves as the child’s parents and were supporting their children from a distance.’ [i]

The report went on to state that it was suggested that ‘perhaps a revolving door approach was needed for some adopted adolescents, whereby they could spend time away from their families without it being seen as a failure. Instead, most of the families… interviewed spoke of an ‘all or nothing’ social work approach that blamed and judged parents when relationships were just not working, and parents needed respite or young people wanted to leave.’ (Beyond the Adoption Order ). It became apparent to the researchers that parents whose relationship with their adoptive children had broken down were often left feeling ‘blamed, demoralised, and unsupported’ (Beyond the Adoption Order), with many of them losing all faith in the system. The report stated that adoptions that occurred during the teenage years were ten times more likely to breakdown. The research suggests that more support is offered in the early years of adoption which does not last the course. There are limited resources and support for adopted teenagers and their adoptive parents.

In addition to the data analysed 390 adoptive parents, looking after 689 adoptive children, returned surveys that asked for an assessment of their current relationship with their adoptive children. 66% of the surveys reported that the adoption was going well. A correlation was found between adoptive parents who were struggling to care for their adoptive children or those with adoptive children who left home prematurely and adoptees with a history of domestic violence, sexual abuse and neglect. Within 91% of adoptions that had broken down the adoptive child had witnessed domestic violence. Further, within 34% of adoption break downs the adoptive child had been a victim of sexual abuse. Mental health problems were prevalent with 97% of those children that had left home suffering from some form of mental health problem.

Professor Julie Selwyn stated that they ‘had not expected child to parent violence to feature so strongly in parental accounts of challenging behaviour. Young people were mainly violent to their mothers, but fathers, siblings, pets and in one case, grandparents had also been assaulted.’ She went on to say that ‘there is an urgent need for Children’s Services to develop support services for adopted teenagers and their parents and for mental health services for young people to be improved.’ (Beyond the Adoption Order) Upon leaving the adoptive home most of the children re-entered care and were extremely difficult to place. Many of them showed extreme and challenging behaviours such as self-harming, attacking others and committing serious criminal offences.

The report makes a number of recommendations to improve the current situation. Among these recommendations were the following:

• Require adoption agencies to demonstrate that adopted children know about and have access to support services, as well as their adoptive parents.
• Encourage development of interventions that focus on the child/parent relationship and whole family interventions.
• Support the evaluation of the effectiveness of the youth justice system’s interventions to address child to parent violence (CPV) for adoptive families in which there is CPV. Such 289 interventions include Non Violent Resistance (NVR) and Break4Change.
• Examine legislation and guidance to ensure that respite care can be provided without making the child ‘looked after’.
• Entitle young people leaving adoptive families to leaving care services, especially support for further education.
• Improve training, supervision and support needs for foster carers and family placement workers in relation to the carer’s and professional’s role and responsibilities for children who move from foster care to an adoptive family.
• Provide needs led rather than service led interventions. Too often, parents and children got what was available in house and not what was needed.
• Identify young children who are aggressive in foster care and intervene to address the aggression.

Areas for further research were also identified promoting an overhaul in the current support system in place for adopted children and their parents.

The full report can be read on the following website: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/301889/Final_Report_-_3rd_April_2014v2.pdf

Following on from my previous blog post entitled ‘29^th March 2014, save the date: The Marriage (Same Sex Couples) Act 2013’, the day is finally dawning, with some same-sex couples planning on marrying at 1 minute past midnight on the 29^th March 2014. So what does this all mean for same-sex couples?

As per my previous blog post, and probably the most obvious change, same-sex couples will now be allowed to legally marry. Furthermore when the act comes in to force, under s.9[i] anyone who is registered in a civil partnership will be able to convert that partnership into a marriage. Under s.9(6) when a civil partnership is converted into a marriage, the civil partnership will come to an end and the marriage will be treated as though it had existed from the date of the civil partnership. However, the act doesn’t provide a mechanism within which civil partnerships registered abroad can be converted into a marriage within England and Wales. These civil partnerships will continue as civil partnerships governed by the Civil Partnership Act 2004 which remains in force.

S.11(1) of the Marriage (Same-Sex Couples) Act 2013 states that ‘in the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.’ According to schedule 3 part 2 of the Act, ‘“husband” includes a man who is married to another man; “wife” includes a woman who is married to another woman’. However, schedule 4 part 3 of the Act does not change the laws surrounding adultery. It is stated that ‘only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section’. Therefore it is not possible for an individual in a same sex marriage to file for adultery.

Under schedule 4 part 7 the government can enact future provisions limiting the equivalence of all marriages. Currently where an occupational pension scheme provides survivor benefits, the scheme only has to take into account the rights accrued from the date the Civil Partnership Act came into force. Under this schedule the Secretary of State is required to carry out a review relating to occupational pension schemes. This review must be published by 1 July 2014.

Same sex couples can now both marry and become civil partners, thus allowing them to decide which they would prefer. S. 15 of the Act states that ‘the Secretary of State must arrange for the operation and future of the Civil Partnership Act 2004 in England and Wales to be reviewed, and for a report on the outcome of the review to be produced and published.’ The Act allows the marriage of a same sex couple in any appropriately registered building including armed forces chapels and in accordance with Quaker or Jewish customs where the relevant governing authority has opted in.  The Church of England remains opted-out. There is no compulsion on any person to conduct a same sex marriage according to religious rites. A review of this is to be conducted and a report of which should be published by January 2015.

Same sex marriages are not currently legal within Northern Ireland and whilst the Act anticipates same sex marriages becoming legal in Scotland, at this time this is not the case. It follows that if a civil partnership is dissolved within Northern Ireland or Scotland, this will also bring the marriage to an end in England and Wales.

Schedule 3 of the Act states that within legislation ‘a reference to persons who are not married but are living together as a married couple is to be read as including a reference to a same sex couple who are not married but are living together as a married couple’.

The ability of two persons of the same sex to marry is extremely important to transgendered people because the position until the now has been that where a person in a marriage is issued with an Interim Gender Recognition Certificate it has the effect of making the marriage voidable. An individual would currently not be issued with a full Gender Recognition Certificate until the marriage has been annulled. Therefore, prior to the new Act a happily married couple would have to divorce if one of the parties to the marriage wished to officially change their gender. This also applied in the same way to those in a civil partnership. Schedule 5 of the new Act covers this issue and allows an interim recognition certificate to be issued to a married person and as long as their spouse consents to the continuation of the marriage following the issue of a full gender recognition certificate, then a full certificate must be given. This is applicable to civil partners whose partnership is converted into a marriage. The Act also covers foreign marriages and their continuation following a change of gender.

I don’t know if any of you tuned in to the Grammy’s this year, if you did you may have seen 34 straight and same sex couples say ‘I do’. The controversy following this event highlighted that there is still a battle to be fought for same sex marriage in many countries across the world; the Marriage (Same Sex Couples) Act 2013 is a brilliant step toward equality within England and Wales and one that we should be proud of.

In the last few days I have heard a lot about the case of Gohil v Gohil [2014] on the legal grapevine and so as I finished off for the day yesterday I decided to take a closer look. After reading the case I now understand the hype: in short summary the Husband in this case applied to the Court of Appeal, after his ex-wife successfully appealed to the High Court to have the original consent order in the financial remedy proceedings set aside. During the original financial remedy proceedings the wife was adamant that the husband was not fully disclosing his personal assets, the husband lived a somewhat lavish lifestyle despite his apparently limited means. However, the wife and husband signed the consent order and the divorce was finalised in 2004. Only three years later the husband was arrested and in November 2010 he was convicted of numerous accounts of fraud and money laundering amounting to over $57 million. The wife’s appeal to the High Court resulted in the setting aside of the 2004 consent order and an order as to costs against the husband. However, the Court of Appeal upon hearing the husbands case for appeal allowed his appeal and stated that while their sympathy went out to the wife the judge at the court of appeal had been wrong to go ‘from the preliminary stage of allowing the reception of fresh evidence to making an order actually setting the 2004 order aside, without any proper fact-finding hearing and on the basis of findings of non-disclosure that were not, on the material available, open to the court.’[i] Despite the husbands complete lack of disclosure the order from the High Court was dismissed along with the costs order and the original 2004 order now stands.

So what exactly happened here? In May 2002 based upon the husbands suspected adultery and unreasonable behaviour the wife issued for divorce. The Decree Nisi was pronounced in March 2003, this being made absolute following the conclusion of the financial proceedings in 2004. The financial proceedings were far from straight forward, and the husband’s financial disclosure showed limited means and assets, with a number of resources allegedly owned by his parents but enjoyed by him. Despite his apparent limited means the husband appeared to be leading a somewhat lavish lifestyle indicative of wealth beyond that disclosed. The financial remedy proceedings were however concluded by consent on 30 April 2004. In April 2006 the Wife applied for an upward variation of her maintenance order and in addition she applied to the High Court for leave to appeal out of time against the 2004 consent order. This appeal was denied. Proceedings in relation to the upward variation continued and on the 3 of July 2007 the wife issued an application to set aside the 2004 consent order on ‘the grounds of alleged serious material non-disclosure, fraud and misrepresentation by the husband.’ (Gohil v Gohil [2014]). The husband was arrested in 2007 and later found guilty in November 2010 of money laundering. ‘The husband was found guilty on four counts of money laundering valued at over $20 million and later pleaded guilty to a number of other charges, including fraud and six counts of money laundering valued at approximately $37 million. He was sentenced to ten years imprisonment.’ (Gohil v Gohil [2014]). It was alleged that the husband assisted James Ibori, a former Nigerian State Governor, to squirrel away large amounts of money into bank accounts across the world.

Interestingly, and slightly off point here, in 2012 numerous newspapers reported on a phone hacking security firm with links to Scotland Yard, with one newspaper stating that ‘anti-corruption detectives [were] examining allegations that two RISC executives bribed officers on an anti-money-laundering unit (SCD6) for information about the case they were building against their Nigerian client, James Ibori, a former state governor, and his British solicitor Bhadresh Gohil.’[ii] Following this Mr Gohil ‘lodged grounds of appeal after the standard investigation revealed claims of corruption during the probe by Scotland Yard’s SCD6 unit into him and Ibori.’[iii] And ‘in a further twist, Gohil also claims he had discovered that one of the jurors deciding his case was a “senior employee of the Department for International Development” — the Whitehall department which funded the Met’s SCD6 investigation into Ibori.’ (The Evening Standard).

Back to the current case in hand, following his arrest the wife sought disclosure of key material from the crown prosecution service (CPS), this application being ‘opposed by the Home Secretary and the CPS on the basis that the documents sought by the wife contained information consisting of, or derived from, material received from foreign governments or other authorities pursuant to requests for ‘mutual assistance’ (Gohil v Gohil [2014]).’. Disclosure of such material being ‘strictly bound by treaties, conventions and inter-state schemes’. (Gohil v Gohil [2014]).  On the 30May 2012, Moylan J order the CPS to disclose the requested and relevant material arguing that to do so would be proportionate. This order was then appealed by the CPS and the Secretary of State and on the 26 November 2012[iv] the appeal was upheld. However, ‘the Court of Appeal decision on disclosure post dates Moylan J’s substantive determination of the issue to set aside the April 2004 consent order which was given in a reserved judgement handed down on the 25^th September 2012 ([2012] EWHC 2897 (Fam)). and it ‘follows that that decision, which is the decision currently under appeal, was determined without recourse to the disclosure that had been ordered from the criminal proceedings and which, as a result of the Court of Appeal decision, will not now take place.’ (Gohil v Gohil [2014]).

In June 2012 the issue of whether to set aside the consent order came before Moylan J in an eight day hearing, at the end of which Moylan J stated that there were two bases on which the wife could seek to set aside the 2004 consent order:

“a) That there has been non-disclosure which had led to the court making an order which is substantially different from the order which would have been made if proper disclosure had been made: Lord Brandon in Livesey v Jenkins [1985] FLR 813 at 830; and/or

b) That there is new evidence which is such as “would probably have an important influence on the result of the case”. Denning LJ (as he then was) in Ladd v Marshall.” (Gohil v Gohil [2014]).

At the conclusion of the case it was held that the husband had failed to give full and frank disclosure of his financial circumstances which resulted in the granting of the wife’s appeal and the setting aside of the order. Furthermore an order as to costs was handed down against the husband. It was held that the degree of non-disclosure was such that the court would have made a substantially different order had they known all of the facts.

The husband’s counsel, James Turner QC, upon appealing to the Court of appeal made various submissions the most important being that ‘there are two distinct stages involved in a Livesey v Jenkins application: determining as, a matter of fact, whether there has been material non-disclosure and, secondly, if so, determining whether the original order should be set aside. Any consideration of whether fresh evidence should be admitted can only be within the first stage, and, probably, at a preliminary point in that stage.’ (Gohil v Gohil [2014]). This was picked up on by the judge and upon upholding the husband’s appeal it was stated that it was not ‘legally permissible… to go… from the preliminary stage of allowing the reception of fresh evidence to making an order actually setting the 2004 order aside, without any proper fact-finding hearing and on the basis of findings of non-disclosure that were not, on the material available, open to the court.’ (Gohil v Gohil [2014]). Therefore, whilst admitting sympathy for the wife, the court held that ‘the judge’s order (including the provisions for costs) must be set aside and be replaced with an order dismissing the wife’s application.’ (Gohil v Gohil [2014]). The decision was agreed upon by both Lord Justice Pitchford and Lord Justice Arden.

With the case read and my blog post written I left the office and began to walk home. The air was filled with the smell of smoke, early this morning a fire broke out at Prezzo Restaurant in Harrogate and was still blazing at 5pm. Thankfully no one was hurt and we can only hope that Prezzo, the surrounding buildings, and flats are back to their former glory in the near future

When a relationship breaks down, one of the hardest things to deal with and one of the most contentious issues can be what the arrangements will be in relation to the children. Unfortunately, parents will have to accept that they will not be able to spend the same amount of time with their children and this can be exceptionally hard for parents who are used to seeing their children every day.

The law in relation to children has been reformed and today the Children and Families bill was given Royal Assent. The act will result in changes to the law to give greater protection to vulnerable children and for children whose parents are separating. In addition, there will also be a new system introduced for disabled children and those with special needs and extra support for parents.

Here at Stowe Family Law, one of the biggest changes that we will see after the implementation of the act is the abolishment of residence and contact orders, which have been replaced by the all-encompassing Child Arrangement Orders. Under Section 8(1) of the Children Act 1989, as amended, a Child Arrangements Order means an order regulating arrangements relating to any of the following:

a) With whom a child is to live, spend time with or otherwise have contact.
b) When a child is to live, spend time with or otherwise have contact with any person.

It would appear that the logic behind the change is that the Courts believed parents to be making applications for Contact or Residence simply for the status, finding that they had not attached importance to the actual substantive matters. Furthermore, what is apparent from the change is that the focus is henceforth to be on the content of the order, rather than its name. The underlying aim in the change of terminology is to prevent the historic conception of there somehow being a winner and a loser in children cases.

However, that being said, the Child Arrangement Orders definition does not, in reality, look dissimilar to Residence and Contact. Ultimately, they still provide for where the child will live and with whom, when and how the child is to spend time.

Parental involvement presumption
What the Children and Families Act most notably does, is tries to address the common perception that the current law does not fully recognise that it is crucial for a child to have both of their parents involved in their life. This problem was addressed by way of Clause 11 of the Bill which most definitely falls within the ambit of the controversial discussion on whether there should be a statutory presumption in private law, that there should be shared parenting or parental involvement.

Clause 11 introduced a new section 1(2A) into the Children Act 1989 which requires the Courts to “presume, unless the contrary is shown” that involvement of each of the child’s parents in their life “will further the child’s welfare”, when considering applications for the discharge or variation of a section 8 order.
However, it should be highlighted that this new insertion into the Children Act does not in fact mean that all parents will fall within its scope. This is because Section 1(2A) also states that

“if that parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm; and is to be [so treated] unless there is some evidence before the court in the particular proceedings to suggest that involvement of that parent in the child’s life would put the child at risk of suffering harm whatever the form of the involvement”

Therefore, if a parent’s involvement would be seen to put the child in harm’s way, the presumption will be rebutted. Even in cases where the presumption is applied, the Courts must still consider whether it should be rebutted if it is decided that the involvement of the parent would not further the child’s welfare.

Mediation
Another area, in which the Children and Families Act will have an impact, is by the encouragement to resolve matters without litigating. Parties to a children dispute are now required to attend a mandatory MIAM (Mediation Information and Assessment Meeting). MIAM’s are central to the Child Arrangement Programme which was introduced by the Act. The purpose of the MIAM is to provide information about mediation and discuss how the dispute may be resolved without the need for Court intervention. There are, however, categories of persons that will be exempt from the requirement to attend, including cases concerning:
-domestic violence
-child protection concerns
-Urgency
-Non residence is England and Wales
-Lack of contact details for respondents

The exemption categories can be found in rule 3.8 of the Family Procedure Rules.

It remains to be seen how the requirement to attend MIAM’s will work in practice and indeed whether they will lead to a reduction in Court applications… Only time will tell.

The Senior Judiciary to the Ministry of Justice has criticised the Ministry of Justice’s consultation paper, ‘Court Fees: Proposals for Reform’[i] which aims to increase the court fees across England and Wales. The criticism was published on the 4^th of February 2014 and followed previous criticism aired by the Civil Justice Council[ii] in January 2014. The opening paragraph of response to the consultation paper states:

‘Access to justice is a fundamental feature of any society committed to the rule of law. It is not a service which the State provides at cost, but an element of the State and its governance essential to the rule of law and the operation of a free market economy. The State is therefore under a duty to provide effective access to justice irrespective of the State’s ability to secure full-cost recovery.’[iii]

The consultation paper states that:

‘The government believes that it is reasonable to charge more in court fees for certain types of proceeding, because we believe that the party bringing the case will be able to afford to pay a fee which better reflects the value of the proceedings to them.’ (Court Fees: Proposal for Reform)

The types of proceedings include money claims, commercial proceedings, hearings (fast track and multi-track), and divorce proceedings. The ambit of divorce proceedings stretches from financial remedy to both public and private child law cases, with private child law applications being levelled at £215, an increase from £180 and £175 for certain applications. Applications in private child law cases that are currently charged at £95 will not be increased. The consultation paper states that they ‘estimate that the cost of an uncontested divorce was around £270. The government’s view is that the fee for a divorce petition should be set at a level above costs. Our proposal is that the fee should be £750, or around three times the cost of the proceedings.’ (Court Fees: Proposal for Reform).  They follow this suggestion with a question ‘Do you agree that the fee for a divorce petition should be set at £750?’ (Court Fees: Proposal for Reform). The Senior Judiciary stated that they do not agree with the proposal to increase the divorce petition fee to £750. They stated that:

‘Almost certainly, the suggestion would act as a significant impediment to access to justice for many individuals. The great majority of petitioners are women. Many of them will be of limited means, but not entitled to fee remission and the new fee will be unattainable. They may well forgo divorce; and when forming new relationships may prefer to cohabit rather than re­marry. Thus, they would lose the many financial and other protections afforded to married women under the existing law.’ (Court Fees: Proposal for Reform).

Furthermore, they stated that the ‘enhanced fee… significantly exceeds the value of the work in administering the case in question’, and that ‘The Government accepts (paragraphs 71 and 188) that the current fee of £410 already exceeds the actual cost of the administration of an undefended divorce case, namely £270. Currently, the profit element on each petition is £140. There are around 120,000 such petitions annually. The revenue raised from a captive divorce market is already £16.8 million (£140 x 120,000 = £16.8 million).’ (Court Fees: Proposal for Reform). In addition the Senior Judiciary states that they do not understand, ‘why it is right that those who can afford to pay more should do so to ensure that the courts are properly funded. We question whether it is appropriate that this particular sector of the litigating community should assume so large a responsibility to fund the courts properly, rather than the general taxpayer.’ (Court Fees: Proposal for Reform).

According to the Senior Judiciary the increase of court fees across the board would result in an individual’s access to justice being severely impaired. When you combine this with the reduction in legal aid many individuals may forgo resolution of their legal matters. Individuals may opt to remain married and simply separate, which could result in parties not gaining any of the benefits of divorce such as asset division and spousal maintenance. In addition they would also be left unable to remarry. Furthermore, some parties find it impossible to resolve their private child matters without the input of the court and with the increase in costs in this regard they may not have access to this input. This could leave parents with limited access to their children and children without defined routines.