News Release: Over 60% of parents at court without a lawyer

EMBARGOED UNTIL 00:01 MONDAY, 13TH OCTOBER

Over sixty percent of parents are now without a lawyer when going to court to contest arrangements for their children, new government figures reveal.

Between April and June 2014, 12,554 parents out of a total of 20,126 in England and Wales went to court without a lawyer to decide issues such as child contact, residency and maintenance payments.

Prior to legal aid being withdrawn from lawyers for most family disputes, the proportion of unrepresented parents at court for the same matters stood at 42% in 2012/13. The latest quarterly figures for 2014/15 show this has increased to 62%.

The Ministry of Justice figures were revealed under the Freedom of Information Act following a request by Marc Lopatin, trained family mediator and founder of divorce and separation service Lawyer Supported Mediation.

Commenting on the statistics, Marc Lopatin said: “Family courts are rapidly becoming lawyer-free zones. This is having a devastating impact on low-income families as well as creating delays for all parents attending court.

“Ministers should admit they got it wrong. They need to stop seeing lawyers and mediators as an either or. Both professionals working in tandem can keep families out of court and promote the interests of the child.”

The Ministry of Justice figures also showed that the number of unrepresented parties at court contesting financial matters had risen to over 30% for first time. Out of a total of 17,550 people at court to resolve how property and pensions should be split, 5,410 parties were now without a lawyer.

Faced with the prospect of being unrepresented, many parents are simply turning their back on the family justice system. In late September, the Ministry of Justice released official figures showing number cases featuring ex-partners going to court over child arrangements or finances fell to 9,291 between April and June 2014. This is a drop of 40% compared to the same period in 2013.

It is highly unlikely that many of these parents are opting for family mediation over going to court. The same Ministry of Justice figures showed that the number of publicly funded mediations getting underway between April and June 2014 had fallen by over 50%, compared to the same period in 2012 when legal aid was still in place for referring solicitors.

In August, the Law Society warned that falling numbers of parents going to court would lead to children being denied access to their parents which seriously undermines the concept of shared parenting being introduced by the government.*

In addition, Resolution – an association of several thousand family lawyers – recently polled its members to reveal that reforms to the family courts were causing significant delays for both financial and children cases.**

ENDS/

Notes for editors:
For more information contact Marc Lopatin on 033 0223 1188

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News release: Almost 20,000 more parents defend themselves in family court cases

FOR IMMEDIATE RELEASE

Following cuts to legal aid almost 20,000 more parents went to court without a lawyer in 2013/14, according to unpublished government figures.

The surge in unrepresented parents contesting child contact and residence cases follows the withdrawal of legal aid from family lawyers in April 2013 for most private family law matters.

Far from reducing the number of warring parents heading to court, cuts to legal aid resulted in an annual increase. But it is the surge in the number of unrepresented parents that will be a cause for concern among parenting and child welfare organisations.

For the first time ever, over half (58%) of all parents who attended court in 2013/14 did so without a lawyer to represent them. In total, UK family courts dealt with 19,140 more unrepresented parents leading to an unprecedented warning from judges about courtroom delays and access to justice.

Jerry Karlin, Chair of shared parenting charity, Families Need Fathers said: “It is staggering that so many parents are effectively being left to fend for themselves. We urgently need to develop affordable and compelling services that strive to keep parents from the courtroom. Children need their parents to communicate effectively with each other so that conflict can be addressed and ultimately resolved.”

Over half the rise in the number of unrepresented parties were women as low-income mums bore the brunt of the cuts to legal aid. Without access to legal aid for representation at court, the number of unrepresented mothers surged by 52% to almost 35,000. And for the first time, mothers made up more than half (53%) of all unrepresented parents attending court to contest child arrangements.

In fact, more mothers appeared at court in 2013/14 without a lawyer than with one. This is a total turnaround given over 60% of women at court were represented by lawyers in 2012/13 when legal was still available.

Part of the justification for removing legal aid from lawyers was that warring parents would attend publicly funded family mediation instead of going to court. The prediction proved disastrous with family mediation falling by almost 40% in 2013/14 as parents bypassed mediators for the judge.

The shocking revelations follow a Freedom of Information request by LawyerSupportedMediation.com, a new UK-wide divorce & separation service being spearheaded by London law firm Ronald Fletcher Baker.

Rachel Duke, Head of Family at Ronald Fletcher Baker LLP, who helped develop Lawyer-Supported Mediation, said: “For too many parents, going to court is seen as the only option instead of a last resort. This is because family law services are simply too expensive for most separating families.

“We desperately need some innovation and alignment amongst lawyers and family mediators to develop services that meet the needs of parents in conflict. Lawyers and mediators working in tandem can build trust and get separating parents talking about the interests of their children. There’s not a lawyer in the land who can’t fix their fee to do this.”

Marc Lopatin, trained family mediator and founder of LawyerSupportedMediation.com said: “Legal aid remains available for mediation and it’s extremely effective at helping parents reach agreement. The biggest challenge is getting more parents to explore it. This won’t happen unless the Ministry of Justice uses legal aid to bring lawyers and mediators together. At present, it’s driving them apart.”

In 2013/14, almost eight out of ten separating couples that began family mediation went on to reach agreement.* To encourage the take-up of family mediation, the government now insists the party taking legal action against their former partner first attend a mediation awareness meeting.

*Source Ministry of Justice:
https://www.gov.uk/government/publications/future-publication-legal-aid-statistics-2013-to-2014

For the latest facts about divorce, see Office of National Statistics Infographic:
http://bit.ly/1n4UV4z

For more information:
Marc Lopatin: Founder, LawyerSupportedMeditation.com 033 0223 1188

MEDIA RELEASE: Low-income mums bear brunt of legal aid cuts

Over 10,000 more mothers went to court without a lawyer to fight child contact and custody battles in the nine months following cuts to legal aid, new government figures reveal.

Court user data – compiled by the Ministry of Justice – shows that between April and December 2013 over half (57%) of all UK parents went to court without a lawyer for child-related proceedings. The huge rise in unrepresented parents follows the withdrawal of legal aid from family lawyers in April 2013 for most family law matters.

Mothers have been the hardest hit: the Ministry of Justice listed 27,017 women listed as unrepresented, an increase of almost two-thirds (64%) over the same period in 2012 when the figure stood at 16,458. The number of unrepresented mothers increased at almost double the rate of unrepresented fathers.

The shocking revelation follows a Freedom of Information request by LawyerSupportedMediation.com, a new UK-wide divorce & separation service which combines fixed fee legal advice with family mediation.

Between April and December 2013, more mothers (59%) appeared at court without a lawyer than with one. This is a complete turnaround compared to the same period in 2012 when 61% of women were represented by lawyers at child-related court proceedings.

Sarah Thompson, a Principal Lawyer at law firm Slater & Gordon who helped develop Lawyer-Supported Mediation, said: “Getting caught up in the court process can be incredibly hard on both parents. Often people find that decisions go against them because they’ve not been able to refer the judge to the relevant legal points of their case. They can end up getting emotional and not representing their cause in the best possible way.

“To respond to this crisis in representation the legal professional is having to completely rethink how best to serve clients. We need to develop more affordable approaches that build trust, encourage dialogue and ultimately help separating couples reach the right outcome for them.”

Marc Lopatin, trained mediator and founder of LawyerSupportedMediation.com, said: “Legal aid remains available for family mediation and it’s extremely effective at helping parents reach agreement. The biggest challenge is getting more parents to explore it. This won’t happen unless the Ministry of Justice uses legal aid to bring lawyers and mediators together. At present, it’s driving them apart.”

In 2012/13, over two-thirds of separating couples beginning family mediation went on to reach agreement. In a bid to restore mediation numbers, the government now insists any party taking legal action against their former partner first attend a compulsory mediation awareness meeting.

Previously, LawyerSupportedMediation.com used the Freedom of Information Act to reveal that the Ministry of Justice spent less than half of the £24 million it allocated to fund family mediation in 2013/14. Despite mediation remaining available on legal aid, the number of parents attending fell by 40% between May and December 2013.

Senior judges warned last month of huge stresses on the country’s family courts. In written evidence responding to the government’s consultation on the first year of cuts to public funding, the judicial executive board said that courts have faced an ‘unprecedented increase’ in numbers of litigants in person. It warned that the reductions in legal aid would lead to cost increases elsewhere in the court system as cases now take longer.

The Ministry of Justice will publish legal aid statistics for April 2013 to March 2014 on Tuesday, 24th June.

Family Courts facing crisis?

In our last blog we asked if the new Single Family Court will cope with the surge in the number of parents representing themselves at court.

Since then the judiciary – in written evidence to the government about changes to public funding – warned that the rise in litigants in person is taking its toll on the court system. In its report to government, the judiciary stated: “in private law family cases, legal representatives are now described by judges as “a rarity”.

The report added: “In the family courts the judicial perception is that private law appointments where both sides are unrepresented typically take in the region of 50% longer”.

I wonder if the judges had access to the following court data secured via the freedom of information act? It shows that since changes to public funding – when the bulk of legal aid was removed from family lawyers – parents without lawyers are no the  majority of litigants at child-related court proceedings.

number-unrepresented-parties

proportion-unrepresented-parties

Away from child-related proceedings, family court data for Ancillary Relief cases shows legal representation holding steady compared to pre-LASPO. It will be interesting to see whether data for 2014 shows a similar tend towards self-representation. This could prove far more incendiary for the MoJ given the image of stay-at-home-mums asking despairing judges what “pension splitting” means.

LIPs, lawyers & mediators: never the twain shall meet?

On April 22nd the Ministry of Justice (MoJ) made mediation awareness compulsory for anyone wanting to issue family court proceedings. The very same day we published evidence of an impending crisis that threatens to engulf the new Single Family Court.

Using MoJ data secured under the Freedom of Information Act, we revealed that unrepresented parties are now the majority in family cases dealing with child proceedings. My legal sources tell me this is unprecedented. Overall, the number of unrepresented parties attending court has swollen by one-third compared to the last full year when legal aid was available for representation at court.

Away from child cases, unrepresented parties are also set to rise for financial remedy (formerly ancillary relief) proceedings as pre-April 2013 publicly funded cases are inevitably discharged. It’s a sobering thought. Given financial proceedings can be technical and complex, how long before national papers report stay-at-home-mums asking despairing judges what “pension splitting” means? And what of the unknown number of divorcing women that don’t surface as litigants in person and run the risk of agreeing something lopsided over the kitchen table?

Clearly, the MoJ wants to avoid such a scenario. It is pinning its hopes on compulsory mediation awareness to divert swathes of would-be Applicants from judges to mediators. Every little helps but making someone consider mediation in the context of them wanting to do something else (namely litigate) is a weak lever at best.

This is a great shame since mediation is extremely efficient once underway. Latest figures from the MoJ point to agreement being reached in over 70% cases. Getting more people to start mediation is therefore the only game in town if the MoJ wants to ease pressure on the new Single Family Court.

But mediation without lawyers is just not cutting it. Since the introduction of LASPO in April 2013, publicly funded mediation starts have fallen by 37% year on year. The withdrawal of the funding code referral has severed the link between publicly funded lawyer and publicly funded mediator. Worse still, they now compete with each other for the same clients.

Between April and December 2013, referrals from lawyers to mediators plummeted by 75%. Meanwhile, referrals to mediators from non-lawyer sources are so low they border on statistical irrelevance: UK-wide referrals from Citizen Advice Bureaus and other advice agencies account for just 3.5% of all referred cases. (See the data for yourself)

So why have referrals from lawyers dropped so steeply? Short answer: self-preservation. In order to survive, legal aid lawyers have embraced the unbundling of family law services. While PAYG or fee for item services would ordinarily be embraced in consumer rights circles, the cornerstone of efficient dispute resolution remains structure and momentum.

But then completing Form E, drafting a consent order, or filling out a divorce petition, provides neither structure nor momentum. This is ring-fenced process and a telling reminder that unbundled services is not a cut-price substitute for lawyer-led negotiations and collaborative law.

One might go so far to argue that unbundled family law services are doing little to dampen the incentive for self-representation given litigants in person can “top-up” with legal advice between hearings.

Taken as a whole, this should give Simon Hughes extreme cause for concern. If the minister is serious about averting a pre-election crisis at the new Single Family Court, he must act to give publicly funded lawyers sufficient incentive to promote and support publicly funded family mediation.

At present, the MoJ pays said lawyers £150 to burn a new matter start for providing “Help with Mediation”. And the number of claims submitted by lawyers across England and Wales for “Help with Mediation”? That would be a grand total of 26 claims between April and November 2013. No, we’re not making this up.

Leaving aside the unanswered question of whether it’s now MoJ policy for separating couples to attend family mediation without taking any legal advice, the lack of partnership between publicly funded lawyers and mediators is striking. The MoJ needs to put this right. It is not about “restoring legal aid by the back door”; it is about re-casting “Help with Mediation” to include a post-MIAM – but pre-mediation – meeting with an advising lawyer who can earn more than 150 quid to ensure decisions being taken at mediation are informed.

This strikes me as a small price to pay to avert the political fallout that will engulf the MoJ as the new Single Family Court grinds to a highly visible and newsworthy halt.

*A version of this article was published by The Justice Gap.