Break up, make up: a family system fit for the 21st century

We're only four months into 2013 and already it is a landmark year for Resolution. In March, the 6,500 members of the UK's largest collection of family practitioners mourned the death of founder John Cornwell, 30 years after he created what was then known as the Solicitors Family Law Association.

But cuts to legal aid and the impending modernisation of the family courts mean Resolution can't afford to look back. As members converged on the 25th annual conference in Stratford-upon-Avon, thoughts were firmly on the present.

New, stricter case management rules, a more inquisitorial approach, and the litigants in person pathway were among the radical changes to the family justice system that would coming over the course of the next 18 months, detailed by Lord Justice Ryder in his keynote speech. But 2013 was always going to be a landmark year, and not just for Resolution.

The group marked the significant changes and uncertain future with the launch of 'Family Matters'. The project will recruit 'guides' from Resolution members to work with couples who are splitting up, and advise them on ways to achieve constructive agreements that concentrate on the needs of children. The scheme will launch in Crewe, Newcastle upon Tyne and Oxford and will cost the Department for Work and Pensions 650,000.

Chair Liz Edwards said she was proud that the group secured government funding to help deliver the project, but that this didn't mean that the group would "suddenly become cheerleaders for what the government is doing elsewhere".

One thing Resolution could not be accused of is being "cheerleaders" for the government cuts to legal aid, which came into force on 1 April. Even after the event Edwards is quick to label cuts "appalling, wrong-headed", "economically flawed" and a "green light for bullies". The group continues to make representations to government.

Only a small portion of the 300 members who listened to Edwards' speech however will be directly affected by the cuts to legal aid. Only around 25 members raised their hands when asked by Charles Russell's Grant Howell and Irwin Mitchell's Martin Loxley, who delivered the financial update, how many people in the audience still provided legal aid.

Revolution

Edwards' speech was followed by Lord Justice Ryder, giving the speech he had been delivering up and down the country before he handed over the family modernisation baton to president of the family division Lord Justice Munby. Accepting his new position last week, Munby LJ highlighted three elements key to the reforms: the new single family court; the work done by Professor David Norgrove; and the need to make cases more transparent.

Modernisation of the family courts will be nothing short of a "revolutionary culture change", said Lord Justice Ryder, but that change will be incremental. The new family court system will be implemented from April 2014 after the completion of a 12 month pilot. A national pilot practice direction will come into force on 1 July, tying public law practitioners over until the Children and Families Bill receives royal assent and new rules on public law cases come into force.

A data collection device - monitored and collated by the judiciary, not the Ministry of Justice - will tell judges what is and isn't working, Ryder LJ assured Resolution members.

The senior judge also said the 26-week case deadlines will not be introduced suddenly, but instead will be implemented during the pilot to give practitioners time to become familiar with new procedures and forms.

As to litigants in person, they will be provided with the same guidance as the judiciary, which may become a practice direction from next year.

The last major change will involve judges identifying the question to be asked while minimising paperwork and explaining what evidence should be produced, explained Ryder LJ. In addition, where one party is represented, their lawyer will also be expected to help the litigant in person "without prejudicing their client's case or, heaven forbid, costing their client any more money".

"That is proper inquisitorial justice. It will probably have to go to the Court of Appeal to see whether it's right or not, but there may be an advantage to that at the moment."

The onus will be placed on making private family law "user friendly" for both litigants in person and the represented party.

Into the wild

But Resolution chair Liz Edwards believes there is something to be said for sending your client into court as a litigant in person, when there is no bullying or difficulty involved in the case.

"It's something Lord Justice Ryder alluded to actually... Sometimes you end up paying a great deal to make it all flow because you've got the person on the other side who isn't represented.

"The best value for money is the initial meeting with your lawyer. Clients get then the information about the process but then also the tailored advice. And I have a lot of clients who come for that and who come back just before a hearing to prepare papers for that.

"But if that became a way of approaching things, it's going to make things even harder for the courts."

Pick 'n' mix

While Edwards is a non-practising mediator, she believes the first port of call for couples should be a solicitor.

"And that isn't because I then immediately start thinking the cash register is running.

"More people I see resolve things over the kitchen table than through mediation. They come and see me, I give them initial advice about their situation, which is quite detailed, they go away, they talk to their partner, they come back and they've sorted it out.

"That is overlooked, I think. Here is something that people up and down the country are using, and Resolution lawyers are giving that option."

So does Edwards think 'unbundling' is more than just a buzz-word?

"People are accessing legal services differently. They are almost pick 'n' mixing what they do.

"A DIY or pay-as-you-go model would help the image of family practitioners. If a client is in front of you or speaking to you on the phone they should know that they are incurring a cost.

"If you are giving direct service then it increases your ability to provide accurate estimates but also it gives them some clearer idea about when the clock is ticking."

Fixed fee is an inevitability, says Edwards, but the extent to which it is used is still being tested. Taking a client to a certain point in procedures is far more realistic than promising a fixed fee from start to finish, she says.

"I'm not going to downgrade what the Co-op has done but it's not very innovative or different from what other lawyers are doing generally, and Resolution lawyers are doing all sorts of things. We are really trying - sadly not my firm at the moment - but we are very much trying on the ground to do the things that are most relevant to clients."

It's impossible for practitioners to ensure consumers continue to have access to justice post-LASPO, believes Edwards. But LASPO also means a less adversarial approach should now have a predominant place in the public's psyche. Part of Resolution's aim to achieve this is an ongoing project to create a searchable mediator directory, making it easier for the public to access trained mediators in their area.

Andrew Newbury and Ursula Rice ran the buisness development workshop at Resolution's conference. Read their thoughts on how you can increase your practice's top line by 5 per cent here