The changes will speed up court processes for dealing with issues arising from divorce and separation, and for taking children who are at risk into local authority care. However the fact that more and more people are representing themselves in the family courts as a result of civil legal aid cuts introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is leading to more delay.
The main changes coming into effect in April include:
• Restrictions on the use of expert evidence, requiring judges to have regard to the impact of delay on the child when deciding whether to permit expert evidence.
• The creation of a single Family Court for England and Wales which should operate more efficiently for court users.
• A 26 week time limit for completing care and supervision cases, to speed up the process of finding a permanent placement for a child. A judge will have the discretion to extend cases by up to 8 weeks at a time if necessary.
• Child Arrangements Orders’ in place of ‘residence’ and ‘contact’ orders.
• A requirement to attend a meeting to find out about mediation before making an application to the family court in disputes over money or the upbringing of children.
The Law Society has played a key role in developing these changes with government and the family judiciary.
Law Society President Nicholas Fluck said: “The Law Society supports these changes, but the problem for many separating and divorcing couples is getting access to legal advice to help them through the court process, or to find alternatives to court. The cuts in legal aid for family law have put people off from seeking advice and support from solicitors who can explain where they stand and what their rights are.
“It’s important that victims of domestic violence can still get legal aid and that legal aid is still available for family mediation. However the fact that more and more people are representing themselves in the family courts is leading to more delay.
“Mediation can help couples avoid the stresses and strains of court hearings, but it is not suitable in all disputes, particularly those where one party is in a significantly weaker position than the other. In these cases a solicitor is required to protect a client’s interests and be on their side.’’
Nicholas Fluck added: “It is entirely right that the new child arrangements orders seek to place the emphasis on the rights and welfare of the child, not the interests of the parents, but there are limits to what changes in terminology alone can achieve – many people still refer to ‘custody’ of a child.
“The new Single Family Court should result in better allocation of cases and improved judicial continuity and case management, which will speed up private and public law hearings.”
“Delays in care proceedings had reached an unacceptable level, and everyone in the system – judges, lawyers, social workers – has been working hard to reduce them, with some success. There is a balance to be struck between investigating every available option and causing more harm than good through delay. The real test will be how judges exercise discretion in those cases that need more time.”
“It is right that expert evidence should be restricted to that which is necessary for the court and which is not available through other sources. The problem now is not that too many experts are being called but that there are too few experts to go around, following cuts in their legal aid fees and the Legal Aid Agency’s refusal to pay fees in some cases, even when the judge has said that they need the expert report.’