Part 1: Parents shun mediation for the courts

So what has happened to lower-income separating families since legal aid was withdrawn from lawyers in April 2013?

We already know impacted families aren’t dutifully heading off to publicly funded mediation as the Ministry of Justice (MoJ) intended. So are they heading to court instead? Well, our latest Freedom of Information requests go some way to answering the question.

Here’s what we found out:

  • Between April and September 2013, 21,574 parties represented themselves at court for child related proceedings (parental responsibility, contact, residence, etc). The figure for the previous 12-months (2012/13) stood at 33,294.
  • So within six months of the changes to public funding, the total number of unrepresented parties already accounts for two-thirds (65%) of the previous year’s total.
  • Between April and September 2013, almost half (45%) of all parties involved with private family law child proceedings, were unrepresented. This is up from 37% for the last completed year (2012/13).
  • Between April and September 2013, the number of applications rose by 10% to 29,243, compared to 26,252 applications for the same period in 2012.

This should come as no surprise. Critics of the MoJ’s cuts to legal aid warned of burgeoning numbers of litigants in person causing delays in family courts already reeling from budget cuts of their own.

In response to the data outlined above, the MoJ will no doubt point to a forthcoming change in the law making it compulsory for all Applicants to first meet a mediator before being allowed to issue court proceedings. But will this lead to the sought after reduction in the number of people turning to the courts?

Compulsion is without doubt a proven means of increasing the take-up of family mediation. But MoJ data reveals it to be an inefficient tool at best. In 2012/13 – the last full year with legal aid in place – family lawyers made 62,390 compulsory referrals to publicly funded mediation. In the same year, the MoJ recorded just 13,571 mediation starts.

But perhaps the most telling statistic is one that can’t be measured. Compulsory referrals to mediation ceased to be on 1st April 2013. So what are tens of thousands of lower income separating families doing to resolve their disputes? Well, not many are heading to mediation. The removal of compulsory referrals to mediation triggered a 43% drop in the number of mediations getting underway in November 2013 compared to the same month in 2012.

We also know that while the number of litigants in person is rising, the figures aren’t yet large enough to account for the tens of thousands of people who consulted legal aid lawyers in 2012/13.

So we’re left to make some broad assumptions. Firstly, a great many lower-income separating families are resolving matters between themselves now that lawyers are out of reach. Secondly, in the absence of legal input a great many continue to be mired in conflict. And thirdly, an unknown percentage of non-resident parents are giving up entirely.

This is for researchers and academics to answer in years to come. Alas, the Freedom of Information Act has its limits.

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