Jo: Inevitably there have been some teething problems. The new child arrangement forms are convoluted and hard to work with, for example. The courts seem to be facing difficulties with standard orders. Since LASPO was introduced, we have seen significant rises in litigants in person – and the reality of more separating people than ever before representing themselves is presenting real challenges for judges. It’s also the case that many local authorities think they can’t complete care cases in 26 weeks, though most are working hard to do so.
To what extent are the issues being encountered a result of the 22 April changes?
Susan: The rise in litigants in person would be happening anyway. The same goes for the lack of availability of experts – their fees have been cut, and the work can be onerous and time-consuming, so they feel that it is not worth their while. We are seeing vulnerable litigants in person who are not entitled to public funding and are unable to get necessary expert assessments.
Jo: While the 22 April changes are a result of the Family Justice Review, we have also been hit by LASPO along the way. There has been huge change for our members to cope with and many are understandably at saturation point. An area of particular concern is a dip in publicly funded mediation. Justice minister Simon Hughes MP is looking at this. This is an inevitable result of LASPO and the removal of solicitors and Citizens Advice Bureaux from the equation, and it is a huge tragedy.
What changes are you seeing now that separating couples have to attend MIAMs before making an application to the court?
Jo: Overall, ensuring that separating couples find out more about non-court options is hugely welcome. As a mediator myself though, I think it’s important to remember that mediation is not a panacea. It doesn’t always work, and some cases need a judge. I have been acting for a client in a children case that has involved eight mediation sessions with two mediation services, roundtable discussions and solicitors’ correspondence, but nevertheless we are stuck and mediation hasn’t worked. In that situation, it isn’t helpful then for the parents to be faced with a judge telling them that two such intelligent parents should be able to resolve this without court involvement. For parents who are stuck in this way, they still need a judge.
Susan: That’s a good point. Such parents are at risk of being forgotten. Mediation is usually the most constructive way to resolve disputes about the most beneficial arrangements for children after relationship breakdown. In my experience, Resolution solicitors will always try to suggest mediation when appropriate. But there has to be recognition by judges that some cases will simply not be resolved by mediation.
What are your hopes for the future?
Susan: There needs to be a change in the guidance in respect of s10 of LASPO, so that it is in line with the European Convention on Human Rights. On a daily basis we are seeing cases which ought to attract exceptional funding under s10. The task of dealing with litigants in person who have not received any legal advice is difficult enough for judges. But dealing with cases involving serious allegations against unrepresented respondents or litigants with mental health difficulties but no funding to provide medical advice, for example, is making their task almost impossible in terms of concluding cases justly and with minimum delay.
Jo: Resolution endorses all of that. Section 10 is not providing the safety valve that it should be doing. We are working tirelessly to collate evidence of injustice – to put flesh on the bones of our concerns when we see people being denied access to justice. Looking further ahead, Resolution hopes to play a greater role in helping to develop the future of family law, and to be more involved in shaping future reforms. The President of the Family Division has made significant and welcome strides to improve communications with practitioners. Hopefully we can build on that, and we are keen to combine our voice with that of the Family Law Bar Association in doing so.
This interview was originally published in the July/August issue of The Review and can be accessed on the Resolution website. It has been reproduced here with permission of the copyright owner.
