The overburdened court system needs more than a plaster to heal a gaping wound

The overburdened court system needs more than a plaster to heal a gaping wound

One lawyer, one couple - a new way forward?

Where now for the family justice system post-Budget, with delay and backlog continuing to plague the system? In January, the UK government confirmed that the forced mediation plan for separating couples would not be pursued, a solution aimed at reducing court waiting times and harmful delay experienced by families caught up in the system. 

Whilst those with concerns about this proposal are no doubt relieved, the same problems persist – so where does that leave us?

In the Spring Budget, Chancellor Jeremy Hunt pledged £170m to make a justice system "fit for the modern era" – referring to too many family law cases using the court system. The £170m has been allocated with the intention of funding non-court resolution which would presumably include mediation and digitising court processes with a greater use of AI. There are other non-court-based options such as private hearings and arbitration but it is currently unclear if these avenues are within the new remit.

Of this £170m, £55m is to be ring fenced for "providing online guidance and earlier legal advice" aimed at potential users of the court system before they formally engage it. This aims to provide early advice in private cases involving children.

The full Budget also reveals that £12m will be used to increase the scope of legal aid. This was severely curtailed in 2012 for most private family law matters.

The emphasis appears to be on providing information at an earlier stage for all, enabling informed decisions to be made. Although this must be a step in the right direction, will it be enough to impact court delay for the better? 

Those who cannot afford ongoing legal advice throughout the entire process will remain in the same position unless full provision is made to the end of the process. In the event of a dispute their only option will be to turn to the court. Although there may soon be more hoops to jump through if they do not qualify for assistance but also cannot afford legal costs, the court route will remain their only option. This access to justice issue can only be solved by significantly widening the scope of legal aid even further.

There has also been significant underfunding over many years of court staff and buildings and a lack of judicial resource to hear cases – all of which impacts inefficiencies and delay, too. This has not been addressed by the current Budget.

What else could the UK government do? A mediation voucher scheme was introduced during the pandemic to ease demand on the court system. This provided a contribution of £500 per eligible family towards the cost of mediation, and was not means tested. The voucher scheme has benefitted almost 25,000 separating families. 

To further encourage and promote mediation, this scheme could be rolled out for a longer period. It could be means tested to preserve the ‘pot’ for those that really cannot afford to pay for any external assistance. It is unclear if an extension to this scheme is part of the £170m pledged.

Before an application is made to resolve a financial- or child-related dispute, the applicant must attend a Mediation Information and Assessment Meeting (MIAM), a necessary step since 2014. The aim is for a mediator to outline all the non-court-based options and the costs to better inform potential court users.

There were, however, exceptions which have been exploited over the years facilitating some applications with little – if any – scrutiny. The UK government has identified how this process can be tightened up to ensure greater uptake and compliance with the MIAM requirement. 

This should go some way to steering potential applicants more towards the information they need to make an informed decision and hopefully encouraging them to consider all of the options before initiating a court application.

Although one key aspect, namely information provision at an earlier stage, appears to be being addressed, the remaining key requirement of funding/access to justice may not unfortunately have been adequately tackled. 

The amounts mentioned in the Spring Budget are not insignificant, however there remain concerns that they are not enough and that what is proposed is a sticking plaster solution for what is now a gaping wound. 

This article was first published in eprivateclient and can be accessed here.

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