Reforms to family justice: A force for change or disruption?

If your work is in any way connected to
family law, you will be aware of the profound changes that have swept through the family justice system in recent years.

In April 2014 we saw the introduction of what the president of the Family Division, Sir James Munby, called 'the biggest set of changes to the family court in a generation' - a sweeping programme of reform that encompassed compulsory mediation information and assessment meetings (MIAMs) and the introduction of a 26-week time limit for completion of care cases, as well as the introduction of the single Family Court, administrative and procedural changes, and the coming into force of the Children and Families Act 2014.

While some of the changes have been welcomed by the family justice community, many still feel the new system is causing delays and problems for lawyers, mediators, and their clients, especially set against the backdrop of the 2013 legal aid cuts.

Resolution has been closely monitoring the reforms, how they are working in practice, and how they affect the work its members do in the courts. Three months after the reforms were passed, Resolution ran a survey of members to track their experiences of the reforms, with a further survey carried out in April 2015 to coincide with the first anniversary of the reforms.

The results show practitioners' experience of the changes has been mixed. There is wide regional variance in respondents' perceptions of the reforms, suggesting that the success of the reforms is largely dependent on the way they are implemented by the local court administration and judiciary. The results also cast doubt on whether the MIAMs system in its present form is an effective vehicle to promote mediation. There may be the need for the government to review MIAMs and to consider other options for encouraging divorcing couples to use out-of-court dispute resolution channels such as mediation, collaborative practice, or arbitration.

The chair of Resolution, Jo Edwards, said that, while Resolution broadly supported the 2014 reforms, and has worked with the judiciary and stakeholders to implement those changes, it had inevitably been affected by the legal aid cuts.

'In assessing the results of our survey,' Edwards said, 'we have been alert to the fact that cuts are here to stay and tried to focus our attention on the areas where the family justice system can be improved by resources being targeted more effectively. We are also mindful of the need for more wholesale reform of the law, as set out in the Manifesto for Family Law we launched earlier this year.'

Court performance

Respondents' views on court performance since the reforms varied widely across regions, suggesting that some courts are adapting better to the new regime than others. Further change is coming with the advent of divorce centres and the centralisation of divorce work, which began in some areas last November.

The reforms have led to few court closures so far, with only 1 per cent of respondents saying the court they used prior to 22 April 2014 had been closed. However, 31 per cent said the reforms had meant they had to use a different court. Of those who had used a different court since the reforms, two out of three (61 per cent) said the changes had led to their clients having to travel further.

Court performance in many areas seems to have been adversely affected, with three-quarters (76 per cent) of those who had used the same court before and after the reforms noticing changes to their counter services, such as counters being available at restricted hours or by appointment only. Some 29 per cent of respondents said staffing of the counter at the court they used had been reduced or changed. Two-thirds (35 per cent) of those who had noticed changes said a drop box had been introduced following the reforms.

Of those using a court where the counter service had not closed after the reforms, 54 per cent rated counter accessibility since the reforms as either poor or very poor. Three-quarters (73 per cent) said the changes made to counter services had made it more difficult for them to issue applications at their court.

Almost half (46 per cent) of those who had changed courts did not know if there was a counter service at their new court. Almost one in five (17 per cent) said there was no counter service at all.

Of all respondents using a court with a counter service since the reforms, over half of respondents (54 per cent) rated counter accessibility as poor or very poor. Counter efficiency and counter staff knowledge also came under fire, with 37 per cent rating efficiency at their local court as poor or very poor.

Resolution member Margaret Heathcote, a family solicitor in central London who deals primarily with the Central Family Court, believes that the reduction in counter staff will have potentially serious ramifications for the increased numbers of litigants in person in the family courts.

‘The reduction in counter service is a source of considerable concern as, for example, an urgent application may need to be issued and without a counter service this may not be possible,’ Heathcote says. ‘Litigants in person will need greater guidance than practitioners and will likely have more restricted times when they can approach the court for help – in their lunch hours, for example.’

She continues: ‘It is difficult to see how the courts can genuinely offer a service if the public-facing counters and the staff manning them are available only for such restricted times. I for one would be reluctant to rely on a drop box to ensure safe delivery of confidential or urgent material, and even a drop box is only of assistance to those who are able to visit the court during the working day.’

The reduction in counter accessibility corresponds with decreasing court user satisfaction, both for practitioners and their clients. Seven in ten survey respondents who are using the same court as before the reforms said the changes have had a negative effect on their court experience; 65 per cent said the experience of their clients had been negatively affected.

MIAMs

The new MIAMs regime has been controversial since its inception, with doubts as to its effectiveness in generating mediation and mediated agreements.

Resolution has frequently pointed out that the process provides a restricted view for couples of the potential dispute resolution processes available to them, as many reports suggest there is inevitably a strong bias towards mediation in the MIAMs process. It also comes, arguably, too late in the process. When a person has already reached the stage of issuing court proceedings, it is often too late to make them receptive to mediation.

The survey findings show a disparity between applicants and respondents when it comes to MIAMs. Over half of those surveyed reported that more than three-quarters of applicants they were acting for had been invited to attend a MIAM pre-issue. Two-thirds (63 per cent) of respondents said the proportion of applicants attending MIAMs had increased since the reforms were introduced.

The story was very different for cases where those completing the survey were talking about respondents for whom they had acted. Only 21 per cent said that over three-quarters of the cases where they had been acting for a respondent since the reforms had seen the respondent invited to a MIAM pre-issue. Almost half (48 per cent) said there had been some increase since the reforms, but almost as many (45 per cent) said the proportion of respondents being invited to MIAMs pre-issue had not changed.

Heathcote notes: 'The courts are becoming more stringent about MIAMs… It is very easy for a respondent to an application simply to decline to engage with the MIAM.'

The 'compulsory' nature of MIAMs also appears to be in doubt in some courts. Three in ten survey respondents (31 per cent) said the court they used had not been refusing to issue applications in children or money cases where there had been no MIAM and there was no exemption. Just 23 per cent of respondents said that, since the reforms, judges at the court they used had been exercising their power to enable parties to attend a MIAM more frequently.

One of the most interesting survey findings is the failure of MIAMs to generate significantly greater numbers of mediations or mediation settlements. Most respondents reported that,
since the reforms, less than a quarter of cases they had acted in where a MIAM had occurred had proceeded to mediation. Of those that had proceeded to mediation, less than a quarter resulted in a full or partial settlement. One in five respondents said that no cases which had proceeded to mediation as a result of a MIAM
had resulted in agreement.

Mediator and Resolution consultant Angela
Lake Carroll, who sat on the government's mediation taskforce, says: 'It is disappointing to see the relatively low mediation take-up figures, with less than a quarter reporting a MIAM had led to mediation. The latter figure does, however, reflect known take-up of mediation. It is important to restate that mediation is not appropriate for all circumstances and all clients, and we would like to see much more information being made available to people about the range of services that might assist them to resolve matters without recourse to courts.'

Forms and practice directions

Revamped forms and practice directions also came under fire from survey respondents.

Two-thirds (67 per cent) considered form A to be worse since the reforms, with 55 per cent reporting the same about C100.

A quarter of respondents said the court they had used since the reforms always enforced practice direction 27a in relation to bundles, and a further six in ten (58 per cent) said their court did so at least occasionally. In contrast, 17 per cent said the court they used never enforced practice direction 27a.

Heathcote said judges of the Family Division of the High Court were being, for the most part, 'very practical' about practice direction 27a, and leave for additional bundles was being granted.

However, she added that it was difficult to imagine how any litigant in person was supposed to understand what they were supposed to do, or why. 'Also, where only one party is represented and the burden for preparation of bundles falls on them, this can be an additional costs burden which is not catered for by the rules,' she said.

Encouragingly, nearly nine out of ten (86 per cent) of respondents said their court had used the new child arrangement programme (CAP) orders since the reforms were introduced, but 6 per cent said their court either still used the old orders or amended versions of the new orders.

The CAP orders have proved to be largely unpopular with many solicitors, with anecdotal evidence suggesting that they are felt to be far too long and far too difficult for the parties who are the subject of the orders to understand, particularly those facing the courts without legal representation.

Where to next?

Any set of changes takes time to bed in, particularly any as wide-ranging as the April 2014 family court reforms. However, over a year after the new regime was introduced, there appear to be some problems with the system which are causing significant issues for practitioners working in the courts and the people who appear before them. The results of Resolution's survey confirm what many family practitioners have related anecdotally: the new system has issues that may go beyond teething problems, with the ineffective MIAMs system being of particular concern. The opening of divorce centres has also generated some concern, although HMCTS has shown a marked willingness to work closely with practitioners to ensure they work as effectively
as possible.

Grant Cameron, a member of Resolution's national committee, is acting as a representative to lead the organisation's work with the government and the judiciary on the family courts.

'Since my appointment I have received significant feedback from around the country identifying areas of concern,' he said.

Resolution recognises the importance of addressing these concerns, both at a local and national level. It is gathering information through surveys and feedback from regional groups with the intention of coordinating responses to members and working to bring about changes to improve the courts' provision of services.

There have been repeated concerns as to the lack of counter services, some of which have been removed at short notice with no consultation. Practitioners believe this is one short step removed from court closures in the foreseeable future.

HMCTS has set ambitious targets in dealing with the turnaround of divorce petitions. Some divorce centres are receiving a substantially greater number of petitions for issue than had been anticipated. Given that we are at a time when staffing levels are not yet at full capacity and there is a reliance on agency staff, delays are inevitable, but we hope this will improve over time.

It is understood that any changes need time to settle in. Furthermore, not all feedback has been negative, with some areas of marked improvements.

We know there are serious challenges ahead as a result of the reforms. We will continue to monitor their impact, and work with Resolution members and others to make recommendations for change to the judiciary and government. SJ

Jo Edwards, pictured, is the chair of Resolution. Resolution is a membership body comprising family lawyers and other professionals in England and Wales, which believes in a constructive, non-confrontational approach to family law matters and campaigns for improvements to the family justice system