Now from our perspective this has been a big week in Milton Keynes family law as the President of the Family Division, the top judge in family law, Sir James Munby, has come to visit us in Milton Keynes.
The visit of the President to the county court here is part of his progress around England and Wales to visit court centres and discuss with practitioners what is happening on the ground around the country, in advance of the big changes to family law and the court system.
In April of this year there is going to be a big shift in how private (which means paid for by the client, not the state) children cases operate. Following on from the axing of public funding for the vast majority of private children cases last year, there are more litigants in person in courts across the country. This is why the system is going to have to change. The government had hoped that the non-represented clients would use mediation instead of the courts, which would prevent the court system being overburdened. It appears though that lawyer referrals were at the heart of mediation system, and now that these clients are not seeing lawyers, there has been a 45% drop in mediation referrals.
Lord Neuberger warned back in June 2013 in a public lecture that “the money problems faced by legal aid are also faced by the courts system, and it is vital for the Ministry to appreciate that any changes which are made to reduce legal aid and cut the cost of litigation are likely to have a knock-on effect on the cost of the courts. Less legal aid means more unrepresented litigants and worse lawyers, which will lead to longer hearings and more judge-time. More judicial control of cases will mean more judge-time out of court to understand the details of each case in advance.”
As there are insufficient public funds to provide more judges to deal with these longer hearings, the solution has been to change the way that these cases are dealt with. The changes which have been made to the legal aid system will affect all individuals issuing private Children Act applications in the court system. Under the “CAP” programme (child arrangements programme) which starts in April, the goal will be to ensure that children cases are swiftly pushed through the court. Currently, children cases are often bought back for review after a period of time, to check how the new arrangements are working, but this will no longer happen.
The system will be more parent friendly. Statements setting out a case may be replaced by a written question and answer session for parents instead. Magistrates in a magistrates court will deal with more of these cases with the assistance of a legal advisor rather than a district judge in a county court, and court orders will need to include more detail about what happened at a hearing and why, to provide continuity. Parents will also have to attend a Mediation Information Assessment Meeting before they can access the court. It is now thought that this meeting may now need to discuss not just mediation but all forms of Alternative Dispute Resolution, for example negotiation by solicitors either “round the table” with both parents or in a collaborative setting.
Each family law dispute will require a unique solution, usually involving more than one method of resolution. “Mediation” and “litigation” are just black and white words, and in real life settling a family law dispute involves lots of shades of grey.