A brave new world – Recent developments in English family law

The Right Honourable Sir James Munby is the most senior family judge in England and Wales. He is the president of the family division of the High Court of England and Wales and Head of Family Justice in the President‘s Court. On 29 April 2014 he addressed the audience in a press conference with the following words:

“We stand on the cusp of history. 22 April 2014 saw the formal implementation of the largest reform of the family justice system any of us have seen or will see in our professional lifetimes. On 22 April 2014 almost all the relevant provisions of the Crime and Courts Act 2013 and the Children and Families Act 2014 came into force. On 22 April 2014 the Family Court came into existence and the Family Proceedings Court passed into history. On 22 April 2014 we saw the implementation of the final version of the revised Public Law Outline in public law children cases and the implementation in private law children cases of the Child Arrangements Programme.

Taken as a whole, these reforms amount to a revolution. Central to this revolution has been – has had to be – a fundamental change in the cultures of the family courts. This is truly a cultural revolution…”

A cultural revolution?

Just over a year earlier the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) had come into force on 1 April 2013. The Act removed public funding for most private family cases. The driving force for change was the Government’s policy to reduce public spending. Before 1 April 2013 the assumption was that civil legal aid was available to help on almost all aspects of English law, with narrowly prescribed exceptions. Since 1 April 2013 the situation has been completely reversed – civil legal aid is now only available for prescribed topics and types of legal work. Whole categories of law have been taken out of scope for legal aid, others only qualify if they meet certain criteria.

Legal aid in family law only in exceptional circumstances

Legal aid in the area of family law is now only available in exceptional circumstances such as domestic violence, forced marriage and child abduction. Legal fees for financial cases (including divorce) or private children law matters (such as residence and contact disputes) are no longer covered by legal aid. In addition attendance at a Mediation Information Assessment Meeting (MIAM) is now required before issuing an application for a financial remedy, see section 10 C&FA 2014), subject to exemptions (rule 3 Family Proceedings Rules 2010). However, the number of people who agreed to take up mediation following the implementation of LASPO fell dramatically. This was an unintended adverse consequence of the reform of legal aid.

Family Courts at “breaking point”

As a result the the number of people forced to represent themselves in family cases has increased dramatically. Many hearings have become protracted and judges are often forced to intervene repeatedly to explain the legal process. The family law organisation Resolution has described the family courts as being at “breaking point”.

Resources for Litigants in person

In June 2014 Sir James Munby established the Financial Remedies Working Group. Its task was described as being two-fold: To explore ways of improving the accessibility of the system for litigants in person and to identify ways of further improving good practice in financial remedy cases … confined to matters of practice and procedure.

The group recognises in its first report that a substantial and possibly increasing proportion of financial remedy litigation is now conducted by litigants in person and that procedure and documentation must be designed to ensure that this fact is taken into account. The group refers to and recommends a number of resources for litigants in person, for example:

–          A guide called “Applying for a financial order without the help of a lawyer” by Advicenow (www.advicenow.org.uk), see: www.advicenow.org.uk/advicenow-guides/applying-for-a-financial-order-without-the-help-of-a-lawyer

–          A book titled “The Family Court without a Lawyer: A handbook for Litigants in person” by Lucy Reed (a member of the group)

–          A website with the name www.nofamilylawer.co.uk.

–          The group advises that the Ministry of Justice has launched its site: www.gov.uk/represent-yourself-in-court.gov.uk.

The group encourages judges (and practitioners where they act for one party) to use language which is readily understood by Litigants in person and advises for example that:

–          Litigants in person are more likely to understand what is being asked of them if their names are used rather than the terms Applicant / Respondent.

–          The group states that the traditional expression “File and Serve” may be readily understood by lawyers but is perhaps less well understood by Litigants in person. The standard orders have been adapted to use the expression “send to the court and serve on the other party”.

–          “Points of Disputes” should perhaps be described in the definition section as “things disagreed about and which the court needs to decide.”

The group addresses the need for judicial training and proposes that judges could learn from the Californian research entitled “Effectiveness of Courtroom Communication in Hearings Involving Two Self-Represented Litigants” conducted by Greacen Associates, LLC on behalf of the Self-Represented Litigation Network (April 2008).

A world without lawyers?

An indication that perhaps all is not well is that the group notes that the Family Procedure Rules Committee is currently considering the issue of applying for re-opening first instance orders and a new draft rule is being proposed providing specifically for the court’s power to set aside a final order in specified circumstances. The group understands that that the outstanding policy and procedural issues are being discussed and that it is hoped that the proposed amendments will be considered by the committee in October or November 2014.