Separating couples to be offered legal advice and mediation in bid to unclog family courts

Couples breaking up are to be offered free legal advice to help resolve disputes earlier, allowing family courts to focus on the most serious cases.

Government-funded pilots will be launched this summer in England and Wales to test whether the reform prevents families resorting to protracted and "adversarial" court proceedings that can have a negative impact on the wellbeing of children.

The pilots will be backed by greater use of a £23.6 million mediation scheme launched in 2021 providing vouchers worth up to £500 to spend on accredited mediators.

The reforms are outlined in the Ministry of Justice’s response to a consultation launched last year aimed at cutting the thousands of private family law cases that end up in court – 60,000 in 2022 alone.

This will allow family courts to prioritise cases with “safeguarding concerns”, says the government. It believes the measures will also reduce a backlog which, according to latest figures, was 80,000 in 2022, resulting in cases taking nearly a year on average to conclude.

The Ministry of Justice says opportunities to reach earlier resolution in disputes such as parenting arrangements, finances and maintenance, are currently being missed.

Under the reforms, parents will also be signposted to services through a new online portal and by staff at family hubs.

For separating couples that do end up going to court, a more investigative, less adversarial approach will be adopted, giving greater voice to children in proceedings. Pathfinder pilots promoting this in Dorset and north Wales will be extended to south-east Wales and Birmingham from April, with an eventual full rollout across England and Wales envisaged.

Writing in a foreword to the consultation, Secretary of state for justice Alex Chalk said: “This response sets out an ambitious package of reforms that will put conflict resolution, and children’s welfare, first at every stage of a separation. We want every family to be able to access the right information at the right time, so they understand all the options available to them.

”Our measures will help parents to reach an agreement either by themselves, with the support of professionals, such as mediators or lawyers, or through a family court service dedicated to reducing conflict.”

Chalk said the current justice system often reinforced conflict, “pitting parents against each other to ‘win’ an unnecessary and destructive legal battle”.

He added: “Evidence clearly shows that these strung-out separations are especially damaging for children with effects that can last a lifetime. We are determined to change this.”

Government statistics show it takes on average 47 weeks for private law cases heard in family courts to conclude. 

A 2016/17 study suggests a quarter of families return to court due to arrangements not working or because they need new arrangements. Six out of ten of such applications were made within two years of separating couples initially going to court.

The consultation also considered a proposal to make mediation compulsory. However, responses raised concern that this could force domestic abuse survivors having to mediate with their abusers and the proposal was dropped. 

U-turn?

The principle of means-tested free legal aid was established after The Second World War. In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced severe cuts aimed at saving £350 million a year. 

The reform saw funding withdrawn for legal aid, which paid for legal advice, in almost all private family law cases, with the exception of those concerning domestic or child abuse.

It has left many separating couples, particularly those on low income, to navigate their own way through the court system. This has contributed to the clogging up of family courts as parents representing themselves progress more slowly than when using a solicitor.

Karen Dovaston, chair of the Law Society’s Family Law Committee, said: "Pre-2014, most of the cases you could sort out without having to go to court. You could manage people's expectations about what the court can and can't do.

"When the government withdrew legal aid huge swathes of people who would have got legal aid couldn't afford it. After 2014, referrals to mediation dropped by 60 per cent because solictors were not supporting clients. Instead, parents were going straight to court because they had nowhere else to go to resolve the dispute and it is clogging up the system."

The government has caused some confusion by calling the pilots 'legal advice' rather than legal aid.

Dovaston said: "We don't really know what that means. With legal aid there are certain connotations. There is a relationship between criminal and civil legal aid and funding implications.

"Calling it early legal advice means they can create a new regime for means testing. It is also less uncomfortable to call it early advice and avoids the 'you were right and we were wrong' when they took away legal aid."

Dovaston urged the government "to listen to the people who are going to be using the service" in developing the initiative.

A government Review of Civil Legal Aid is due to report this year.