Throwing the baby out with the bathwater

Readers of SJ do not need to be reminded about the pace of change
in litigation. Financial crises always impose reform.

We can afford to travel to work, despite paycuts, if we give up our morning coffee. Although there may be unexpected consequences, such as arriving earlier but functioning differently without caffeine or at least until the old addiction is broken. And so it has been with the amendments to the CPR. Satellite litigation has exploded on the bonfire of shoddiness and variation, agreements and tolerance. Now we are beginning to appreciate the impact of cost savings in private law disputes.

There was undoubtedly a need to safeguard the public purse by cutting unnecessary expenditure. Equally, there was a preference for disputes concerning children to be resolved without resort to court. Two processes came into play; the withdrawal of public funding and the advancement of mediation. Nobody could be blind to the fact that some worthy cases with impecunious parties need representation, or to the truth that mediation does not always work, so there were escape routes from the general rules.

These escape routes depended on facts being established, generally relating to violence between the parties to satisfy rules enforced by the Legal Aid Agency or a court officer. This has led to a rise in the number of Family Law Act injunctions being sought. There is now a tidal wave of hearings rushing in to swamp the space cleared by the reduction in substantive applications, which was the first result of limiting access to the court by withdrawing public funding.

Mediators

Simultaneously, mediation is dying out. There are two relevant reasons. Mediators generally do not wish to work with people who say they have been abused by the other party and mediation services in the south west are closing for lack of work.

We have made great strides over the last twenty years in our understanding of what makes children safe and happy. Children with balanced relationships with both their parents go on to become well adjusted, functioning adults. The pattern of losing contact with the absent parent that was “normal” post-divorce before the Children Act is no longer acceptable to social professionals.

This principle is given statutory weight by the Children and Families Act 2014, in where the court will presume, unless the contrary is shown, that the involvement of a parent in a child’s life will further his welfare. Another general principle is that delay in determining questions will prejudice the child’s welfare. Any order made by the court must take account of Cafcass’ safeguarding checks, which take no more than 17 days from receipt of application.

So where are we? Articulate, moneyed parents will have no difficulty accessing support and resolving conflicts through mediation, legal advice or in court. The same people will still be able to abuse the systems.

The less articulate parent, however, with an income derived from state benefits, which starts with little ability to negotiate with a former partner and may well have little in the way of problem solving skills or literacy, now receives a message that they cannot have legal representation unless they can get an injunction. They are only told about mediation when they reach the court office to issue an application, and have to wait for up to three weeks for a Mediation Information Assessment Meeting (MIAM) in an area where the providers are going out of business.

What can be done if the court thinks a contact centre is appropriate and the child is young, or the contact has been interrupted by a few months, or that one of the parties is on bail with conditions not to contact the other, or that a neutral but monitored meeting point
is necessary?

A safe referral system has been set up by the National Association of Child Contact Centres with funding from the DWP. Direct referrals are no longer allowed and a new online process has been introduced. Once the application has been made, the person with whom the child is living also has to complete an online form. A dedicated social worker will scrutinise applications and arrange “pre-visits.” Information about how long this is going to take is not yet available. This is the final insult. SJ

 District Judge Tacey Cronin sits at Swindon County Court