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The Government has just published its response to the Family Justice Review. As expected, it accepted most of the Review's recommendations and set forth a preliminary timetable for their implementation. Its commitment to reducing delays within the family justice system is both welcome and timely, but it will be severely tested by the financial realities under which it operates.
Therein, perhaps, lay the Government's greatest difficulty and apparent paradox: the reforms envisaged are the widest ranging since the advent of the Children Act 1989, but its finances have rarely been so stretched. This requires a delicate balancing act, and it is by no means certain that they will achieve it.
One of the preferred methods the Government is using in order to reduce delays in the courts is by diverting private family disputes towards alternative dispute resolution: compulsory MIAMs, the creation of an online ‘hub' providing information on ADR, financial investment in mediation services, and the development of Parenting Agreements are all intended to provide parents with the means to plan for their children's future without using the court system. These can provide a cost-effective and conciliatory solution to many couples, and it is easy to understand why the Government would want to nudge them towards these.
ADR alone, however, cannot solve the problem. The vast majority of couples, around ninety percent, already settle their disputes without going to court. Those that do reach court often do so because they are difficult and acrimonious cases, with little chance for voluntary conciliation or agreement. Whatever its perceived failings, the court system remains the only place to resolve such disputes.
It is difficult to understand the logic in implementing such reforms while important budgetary cuts are simultaneously undermining the rest of the system. The legal aid cuts will adversely affect many couples and parents, who will be forced to represent themselves without any understanding of the process, or with unrealistic expectations about the outcome, inevitably leading to further delays and increased court costs. They will do so in a court system which is suffering from service counter closures and reductions in staff. They will be joined by couples for whom ADR was not suitable or effective.
This perfect storm could have a devastating impact on the family justice system as a whole. As part of its commitment to reducing delays and costs, the Government should ensure that all aspects of the system are adequately resourced.
James Carroll Co-chair of the Law Society's Family Law Committee.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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