The last couple of years have been a period of intense discussion about change in the family law system.  You may have heard about some of what’s going on: removing legal aid from family proceedings, making divorce into an administrative process, introducing a “presumption of shared parenting”, perhaps.  It seemed like a good time for us at bbl family law to bring all the threads together as they will affect most of our clients, and try to separate the myths from the reality.

There are serious problems with the family law system as it stands.  The courts are creaking under the strain of their increasing work with families, both where there are disputes between former spouses or partners about what is to happen about finance, property or children (private law), and in cases where the local authority has become involved because a child or children are at risk (public law).  The delays in children cases are particularly bad.

In addition, the government has formed the view that the legal aid bill for family court work has spiralled out of control, and that there is a lack of public awareness about alternative solutions to family crisis which don’t involve battling it out in front of a judge.  Family policy is a political hot-potato, with people’s choices to marry, cohabit, divorce and have children associated with an impact on public spending on benefits, pressure from traditionalists to promote marriage, contentious proposals on gay marriage, and fathers’ lobby groups becoming more prominent.   For those of us working in the system and observing the competing interests, it has often been difficult to keep up with the direction of debate!

The government has, to its credit, made the first attempt in a generation to get a feel for what is actually happening in the family justice system.  It commissioned a report by top civil servant Sir David Norgrove which made many recommendations for improvements to the system based on a thorough review of the data available from the courts and inviting the opinions and participation of stakeholders.  The government’s response to this Family Justice Review was generally supportive, and many of the recommendations will be implemented, with particular emphasis on better outcomes for the most vulnerable children in care (which we will not consider further here).

In the family courts we have seen the appointment of His Honour Judge Ryder to engage in a modernisation programme for the family courts.  Also, a new set of family procedure rules have arrived which have streamlined some proceedings and made the language of the courts more accessible.  Recently we have seen the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which will remove availability of legal aid in most private family proceedings from April 2013.   And finally, in the Queen’s Speech the government set out some of its proposals for new legislation in what is intended to become the Children and Families Act 2013.

The main changes in the law announced so far relate to parents’ arrangements for children after separation.  The government has said that it intends to get rid of the terms “residence” and “contact” and replace them with a “child arrangements order” which simply sets out what the arrangements for the child will be.  Despite the recommendations of the Family Justice Review to the contrary, the government also intends to introduce some kind of provision into the statute to show that there is a presumption that it is generally in the best interests of the child for both parents to continue to be involved in parenting.  They have expressed an intention to consult on the form of this provision.

The removal of “residence” and “contact” labels in relation to how children’s time is shared is being cautiously welcomed by most family lawyers, as these terms, like “custody” and “access” before them, are often interpreted as showing that one parent should have more involvement in a child’s life than the other even though that’s not actually what they mean.  The question of whether there should be the proposed presumption of continuing parental involvement is more tricky, despite the fact that on the face of it, it may look simply like common sense.

Currently the guiding principle of all decisions made in a court about children is that they are governed by what is in the best interests of the child, so there is natural resistance to any presumption that might detract from or compete with that.  Similar provisions introduced in other jurisdictions have had mixed success and there is concern that it may lead to expectations on the part of parents to have their children living with them half the time, which is not always in the children’s best interests.  In cases where there is no risk to the child, the family courts are generally very keen to keep both parents involved in the child’s life already – the question is whether a change in the law to formalise this is necessary, or whether it will simply be confusing.

Procedurally, there are plenty of changes to come.  The uncontested divorce process is to be taken out of the hands of judges and dealt with by legal advisers instead, a sensible move to free up judicial time but also a historic one that turns divorce truly into an administrative process.  More dramatically, by April 2013 there is to be one single family court to which all applications are made, rather than practitioners/litigants having to choose whether the case should be dealt with in the family proceedings court, the county court or in the High Court.  The decision will be made instead by case managers within the court, who will be tasked with ensuring cases are dealt with at an appropriate level and delays are minimised.

The twist to this is that you won’t simply be able to make an application to court in private family proceedings any longer: instead, those wishing to access dispute resolution services including the family court will have to go through an internet/telephone information “hub” which, it seems, will send them for a meeting with a mediator in most cases to discuss the dispute resolution options open to them.  The mediator will also be able to refer parents onto a separated parenting information course, and signpost other services.  The wider intention seems to be to make mediators into the system’s gatekeepers or case-managers, which is not a role which many professional mediators are currently comfortable with taking on.

There is another twist, which is the imminent removal of legal aid for the majority of prospective family court applicants. This will impact not just on the most vulnerable applicants and their families, but also on all other users of the family court, as judges are likely to find themselves dealing with a flood of self-represented litigants without much sense of the legal aspects of their situation or court procedure.  This is likely to cause huge delay, whether or not some of these cases have been successfully diverted to mediation at an initial stage. There is also a significant risk that child protection concerns will be missed with many clients staying out of the court process.  It is entirely possible that the lack of money, information or confidence to disagree with a current state of affairs will see more children losing touch with one parent after separation rather than fewer, as the government’s specific changes to the family law intend to bring about.

So, to summarise: the government wants to make a statement of principle that both parents should share in the child’s life after separation but will be restricting access to the courts to ensure that happens by removing legal aid.  There will be one point of entry to the system, cases will be allocated to avoid delay, and more judges will be freed from their administrative burdens of dealing with divorce paperwork, but the expected increase in self-represented parties without legal advice is likely to clog up the courts.  Mediators will be at the heart of the new system, but they are not convinced that they should be and do not really want to be.

We will all be affected by these changes to the law and the family courts.  Although the government’s drive to publicise alternative ways to resolve family disputes, it is important to understand that despite their significant reach, mediation and collaborative law are not appropriate in all cases.  From April 2013 when legal aid goes for litigation, mediation is likely to be the only state-supported dispute resolution system in family cases, and there will be no or minimal legal aid for advice to support it.  This will be a challenge for all of us, clients, mediators, solicitors and judges alike, facing the new age of family law.

These are interesting times for family lawyers, with many changes afoot.   The changes might seem remote from your day to day life, but the way a society deals with relationship breakdown affects us all.  Not many of us are untouched by divorce, splitting up or disputes about children.

Here we summarise some of the changes:

1. The Family Justice Review.  The Family Justice Review panel was appointed to review the whole of the family justice system in England and Wales, looking at all aspects of the system from court decisions on taking children into care, to disputes over contact with children when parents divorce. The final report was presented last November.  Amongst other things, it recommended:

a. Encouraging people to make their own arrangements for their children, only using courts as a last resort.

b. Imposing a 6 month deadline for resolving disputes about children being taken into care.

c. More co-ordination of the various different bodies involved in the family justice system.

d. Providing an online hub, to help people start their own divorce proceedings, and making the divorce process much simpler.

We at bbl family law largely support the recommendations.

2. The Government’s response to the Family Justice Review.  Most of the recommendations have been accepted and the government is looking into how they can be implemented.   One of the key differences is that the government seems keen on introducing a legal right for both parents to be involved in a child’s life, unless there are good reasons to the contrary.  The Family Justice Review considered this issue but decided against a presumption that both parents should be involved, on the basis that the overriding principle should be whether it’s in the child’s best interests for each parent to be involved in their life.  There are pros and cons either way, and whatever happens, the outcome needs to ensure the best interests of the child always come first. However, we are of the view this should usually include having the right to know both parents.

3. Legal Aid changes.  The government intends to effectively withdraw legal aid for the majority of private law children cases, and divorce/financial settlements.  We struggle to see how this will work.  What will happen in cases where one parent, out of spite, stops their ex partner from seeing their child?  Many people will be denied access to justice because they cannot afford legal fees.

4. Cuts and the court service.  The courts are facing budget cuts. They are also facing more and more work.  More and more people are “litigants in person”, i.e. representing themselves in court proceedings without using a lawyer (because they cannot afford the fees, or they cannot obtain legal aid).  It can take the court much longer to deal with these cases.  This is creating a vicious circle of delay and further problems.