Family Matters - Meeting the needs of today’s families

Chris Fairhurst
Chris Fairhurst

QUESTION: What is the Government proposing to support families?

A: At the risk of getting too self-satisfied as to whether Number 10 sources are regular readers of this column (I don’t think for a minute they are!), the declaration this week by PM David Cameron that single parents ‘are doing a brilliant job’ gives the impression at least, that with an election due within the next 12 months, the Government has realised that the negative rhetoric of the past few years complained about in my last Family Matters, needs toning down if not outright eliminating.

Coincidence perhaps, but at least it seems that the sentiments of that article are striking a chord within a Government, no doubt realising there is a valuable constituency of voters of whom the sort of negative comments made throughout the last parliament, might be a vote loser.

The Prime Minister claimed that he was not ‘seeking to judge people’s behaviour’, rather seeking to ensure that the needs of families were put at the centre of decision-making by having a new ‘family test’ to consider the impact of domestic policy on the family.

It would be refreshing if such words were turned into positive action, although insofar as family law is concerned the policies of the last couple of years have had a dramatic and some would say negative impact.

With such a wide variety of family arrangements to provide for, Government’s policies were at risk of overlooking many families that could ultimately end up worse off after reforms.

The impact of the Legal Aid changes in 2013 have been written about widely and concerns of family lawyers, repeated here, were brushed aside as doom-mongering.

Unfortunately the worst of the concerns seem to be turning into reality with recent figures indicating that some seem to be giving up in pursuing applications in respect to seeing their children, as evidenced as a steep decline in the numbers of private children applications made to court.

Those cases that remain increasingly involve unrepresented litigants in person whose inexperience of legal issues take up a disproportionate amount of court time and therefore costing more money to resolve.

The suggestion might be made that this is because parents are now happily engaging in mediation as the Government stated, or at least hoped, would happen.

Again, sadly, this is another fallacy as mediation has also reduced dramatically as the numbers of legally aided lawyers available and willing to signpost parents has declined, leading to a massive under-spend of the money made available when the legal aid cuts were made.

Having made much of an individual’s right to choose how to resolve matters when separating in promoting mediation, the decline has perhaps contributed to new efforts in order to try to persuade families to stay together.

The Prime Minister has announced an extra £19.5m to be funded into relationship counselling based on the notion that improved communication between couples will be the key to a better relationship, or failing that a better separation, and its aims are said to be an effort to keep families together by talking about their problems.

This is welcome but the confused approach to the impact of the legal aid cuts was re-emphasised only this week when the Justice Minister announced that an initial free mediation session would now be made available to couples where one of the couple is already receiving legal aid.

The confusion stems from the fact that under the new rules, in force since April 2013, any such cases are those in which domestic abuse has been a feature and therefore not the sort of cases you would usually expect to be suitable for mediation.

The remaining pre-April 2013 cases will be limited and decreasing in number and are likely to have been subject to court proceedings for the last 18 months or so.

Again, not the sort of cases you would expect mediation to be a great assistance for at this point.

The numbers of cases to benefit from this initiative are likely to be limited, and without supporting legal advice any individuals are likely to remain in the dark regarding their options or legal rights, thereby undermining the mediation process.

With this in mind, it has been left to independent organisations like Lawyer Supported Mediation to organise a pilot to see if anything can be done to stem the decline and get separated couples talking to each other with the support of like-minded lawyers, but having had experience of this it seems that some family lawyers themselves not just the Government need to undergo a culture change in making more of mediation as an option to keep couples talking and out of court.