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The Law Society, whose strap line is ‘Supporting solicitors', emailed me about the changes in family law being introduced on 22 April. I was told that they were ‘the most significant for a generation'. Really? Not last year's removal of legal aid for people caught up in family breakdowns? Made worse by the stringent cuts to the justice system that, for example, have reduced the number of full time judges sitting at the Principal Registry (renamed the Central Family Court from last Tuesday) from 20 to 9? Who, in turn, are having to deal with hoards of confused and distressed litigants in person clogging up the family court not able to get enough help from a demoralised and overworked court staff?
Apparently not, according to the Ministry of Justice which used the suspiciously similar term ‘Largest for a generation' to herald the changes. Do the words deckchairs and Titanic resonate with anyone?
The changes include: a greater emphasis on reducing delays in children's cases that must now be completed within 26 weeks; greater judicial continuity; Residence and Contact Orders being renamed Child Arrangements Orders; attendance at information sessions about mediation and the collaborative process (MIAMs) becoming compulsory.
Much lauded has been the change to the structure of the courts. The family law functions of the magistrates' courts, county courts and High Court have now been unified as the Family Court. In practice, this can mean finding yourself in front of lay magistrates to argue a case that you had assumed previously was just right for an able and experienced district judge. Preferably one who had spent at least a few minutes glancing through the painstakingly prepared bundle of documents enabling him or her to appreciate the compelling weight of your arguments.
And that's the elephant in the room. The system was in crisis anyway. On countless occasions, we have been faced with judges who didn't have a clue about our cases. Missing court files, chaotic listing, litigant in person overload ... the reasons were many and various. So is the change in structure going to make things any better?
There's much talk about docketing and gatekeepers. It transpires that docketing has nothing to do with space travel or strikes, but is the new term for judicial continuity. And a gatekeeper has no involvement with football but it is the nominated district judge or legal advisor (in the case of magistrates) responsible for deciding the level of judge who should deal with each individual case.
All applications for Child Arrangements Orders require Cafcass to carry out a prior screening process including Police checks and culminating in a ‘Safeguarding Report' that must be available by the time of the first hearing.
How will these changes be achieved with the paucity of resources? There's no suggestion that any of the cuts are going to be reversed. For example, the additional safeguarding measures in applications for Child Arrangements Order are inevitably going to use up even more of the resources available to Cafcass. Will the quality of their reports diminish still further?
Most of the emphasis in the changes is on children. However, in addition to restructuring the Court, in London the Central Family Court has set up the Financial Remedies Unit (FRU). Floating should be a thing of the past and the whole process should be speeded up. Seven judges will deal full time with financial cases (only seven?). There will be judicial continuity and other administrative changes such as putting in place a process for FDAs not to require the attendance of the parties. We may no longer be given the luxury of supplying dates to avoid (so judicial continuity may be at the expense of lawyer continuity - a brave decision unless the quality of court-led case management is going to change out of all recognition). Paginated bundles and a Jackson-style costs budget will be required at each hearing which is likely to see a disproportionate increase in costs with little discernible benefit to the parties.
One of the problems in the implementation of these changes arises from the fact that many of the details were only released on 22 April leaving lawyers with no time to prepare. Here are some early experiences of the new regime.
I was told of a bad experience in Surrey with neither judge nor court staff having a clue how to deal with a Children Act application. Someone else tried to download a new form from the HMCTS website with no success and concluded ‘God help us all. Confusion reigns'.
Another colleague who was at the Central Family Court related, rather scarily I thought, that their First Hearing Dispute Resolution Appointment (FHDRA) was put before a circuit judge who was so hot on case management that he gave rulings on all the outstanding issues including whether to change a child's surname even though there was no evidence before the court at all.
In the same court, much of the seating has been removed leaving lawyers and clients sitting on the floor, but I did notice that someone had found the time to change the sign on the outside or the building and the scaffolding has been removed at last.
There's a feeling that many judges (His Honour Judge O'Dwyer and District Judge Hess in the Central Family Court, for example) do seem committed to improving the situation. And a colleague says that he thinks they are being positive about the changes because they see it as their only hope of easing the litigants in person nightmare. As this barrister pointed out, lawyers only have to deal with one litigant in person. Judges often have to deal with two - and with no assistance from lawyers.
Where do McKenzie Friends fit in? All too easily it appears. The Legal Services Consumer Panel is recommending the recognition of ‘fee charging McKenzie Friends as a legitimate feature of the evolving Legal Services market' which gives a whole new meaning to the word evolution.
The blunt truth is that new ideas and reforms, together with shortened timetables, are going to require extra resources. Litigants in person aren't all going to want to mediate and mediation isn't suitable for a lot of cases. When dealing with a manipulative dishonest parent, for example, you need an experienced clear sighted judge, not a mediator who can only ‘help' the parents find a solution.
Over the years, the idea has taken hold - perpetuated by successive Governments and the media - that lawyers are the problem not the solution. The Law Society has been largely supine in its response. It's early days and that elephant may manage to negotiate its way successfully round those flimsy deckchairs. Or it may settle itself down on one. An accident waiting to happen?
Philippa is a partner at Ashfords LLP. She's an experienced family practitioner, mediator and collaborative lawyer and a fellow of the International Academy of Matrimonial Lawyers. She writes on a range of legal issues.
Philippa can be contacted at email@example.com /+44 (0)20 7544 2490
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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