Posted: Friday, 4 January 2019 @ 13:43
A recent piece in the Guardian highlighted that the number of divorce and separation cases being fought in the courts that involve children has risen, with £151m of legal aid money being spent on litigation, according to figures.
Research by solicitors Mishcon de Reya shows that more than half of parents going through divorce and separation went to court to challenge issues relating to their children. Figures from the Legal Services Commission, which manages the government's legal aid budget, show last year's costs rose more than 5% on 2007.
There are a number of issues which the research shows.
1 The Court Sysetm is clogging up. Last month Cafcass, the family court welfare service, published quarterly figures showing a 60% rise in public law case requests, with 4,236 requests made between April and September compared with 2,608 in the same period last year. In addition, the increase in proceedings is causing delays to private law cases. The research also shows that some children have turned to drug and alcohol abuse and committed crime and truancy as a direct result of experiencing family conflict involving court proceedings.
Welcome to the consequeces of family trauma.
2. The government is pushing mediation. "The breakdown of a family is an extremely distressing time for all involved, particularly children, which is why I am determined that courts should be the last resort", said the legal aid minister, Lord Bach. "Sadly that is currently not the case, with only one in five legal aid clients experiencing a family dispute opting for the benefits that mediation can bring...Mediation is proven to provide a much quicker and less traumatic process than appearing in a family court for many, and so provides a more satisfactory conclusion for all involved as a result."
3. Mediation is becoming a box tickling exercise. "Mediation is mandatory in order to get legal aid but it's much more of a box-ticking exercise," said Sandra Davies a lawyer at a top London law firm. "The better way is to try to encourage parents to focus on their children in a less acrimonious litigious and confrontational atmosphere, to reduce pressures on the courts, and avoid pressures on Cafcass."
I do not disagree with what Ms Davies says, but what do you do if the parties cannot be encouraged to think about the chilldren.In particular:
1 Lawyers can encourage the parties to not think about litigation and seek to be "sensible". However, not all parties are legally represented and the lawyer may have an inherent fear of confronting the client as to do may mean that the client will be dissatisfied about paying the lawyer's bill.
2 There are limitations to what the lawyer can do. Sometimes you need the parties to be together in the mediation setting so that they can fully identify the issues.
3 Sometimes the conflict can be a good thing and desirable despite the impcat on the children as it is a way for the parties to grieve over the loss of the marriage/relationship. What the mediator can do is to help the parties identify their grief and let them move on.
Justiun Patten Solicitor and Mediator