The family court system is being put under immense pressure by children. Well, when I say children, it is actually their parents increasingly representing themselves in cases connected to divorce and addressing where the offspring will live and when they will have contact with the absent parent. Their lack of knowledge about the process or familiarity with court proceedings is, essentially, clogging up the system, costing everyone time and money.
Obviously their intentions are good, but just taking advice from an experienced family lawyer as early as possible in proceedings could help everyone and avoid the log-jam we are increasingly seeing. It is false economy to skip this step when one considers the significant time factor and stress caused to the parties which may, of course, ultimately adversely affect the children.
Why has this come about? In April last year, the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force. This resulted in the withdrawal of public funding for children applications, essentially getting financial help when appealing to a court to get a contact or residence order (now called Child Arrangement Orders) after family break-up.
Many parties, particularly fathers, felt they had no choice other than to become litigants in person (LiPs) instead of seeking legal advice that they felt they could not afford. A board comprising the most senior Judges in England and Wales has now carried out an enquiry into the effect of LASPO – and the results are concerning. The rise in LiPs has led to more contested hearings putting the court system under great pressure. The absence of professional advice has resulted in an increase in unmeritorious claims. Cases which may never have been brought or might have settled at an early stage are now often fully contested, requiring significantly more judicial involvement, causing delays. This has had an adverse impact upon the courts system’s efficiency, and of course on the families concerned.
The apparent saving of costs in the Legal Aid budget clearly needs to be reviewed as it appears it is simply leading to increased costs elsewhere in the system. Some steps have already been taken, it is fair to say. The Child Arrangement Programme (CAP) was introduced, along with a new single family Court for England and Wales, from 22 April 2014. CAP makes it a requirement for applicants in private law children cases to attend mediation with increased emphasis upon out-of-court resolution. However, there is no guarantee that mediation will work and if a case does proceed to court, the likelihood is that at least one of the parties will be a litigant in person.
In my view there is no substitute for professional legal advice and assistance, particularly when children are involved. This does not mean you will have to go to court, simply that you are getting the right advice from a family law professional. So if the question is “can I afford legal representation”, ask yourself what cost for the best chance of securing your children’s happiness and future? Therein lies your answer.