Contact, Conflict and Changes in Court Convention 

Published on 24 January, 2017 | Alice Couriel

The domestic court system has experienced significant changes in recent years aimed at tackling the large number of cases before it and the limited resources to deal with them.

One of the most substantial was the introduction of cuts to the Legal Aid budget in April 2013 which ministers reckoned would reduce the amount of public money allocated to those who couldn’t afford their own legal representation by £215 million.

The controversial measure was deemed necessary by a Government which claimed that the UK’s Legal Aid bill was the biggest in Europe (http://www.telegraph.co.uk/news/uknews/law-and-order/11149868/Britain-has-largest-legal-aid-budget-in-Europe-says-report.html).

Around the same time, ministers were committing themselves to the concept of ‘shared parenting’ – the idea that both parents should continue contributing equally to their children’s live even if their relationships didn’t last the course (https://www.theguardian.com/lifeandstyle/2012/feb/06/government-backs-shared-parenting-legislation).

The difficulties in resolving such issues have been exacerbated by the fact that, since the withdrawal of Legal Aid for many types of cases heard by the Family courts, more matters see individuals without lawyers represent themselves and, so, are referred to as ‘Litigants in Person’ (or ‘LIPs’, for short).

However, the complications don’t end there. Some families break up amid allegations of domestic abuse, a complaint which – thanks to a law advanced by Theresa May when she was still Home Secretary – now doesn’t just need to involve physical violence (http://www.bbc.co.uk/newsbeat/article/30098611/emotional-abuse-to-become-illegal-under-new-domestic-abuse-law).

When those factors are brought together, it results in what the courts have now identified as the “deeply unsatisfactory” scenario of individuals accused of abuse being able to cross-examine their apparent victims in support of arguments as to why shared parenting should be allowed (https://www.theguardian.com/society/2017/jan/20/uk-judges-change-court-rules-on-child-contact-for-violent-fathers-domestic-abuse).

If the possibility of that was not worrying enough, the most senior family judge in England and Wales, Sir James Munby, has written of how the technology put in place to prevent abuse victims being so traumatised is “a disgrace” while the continuing lack of arrangements covering how such individuals arrive at, leave from and spend their time within courts is also inadequate (https://www.judiciary.gov.uk/wp-content/uploads/2014/08/view-from-the-president-of-family-division-16-jan-17.pdf).

Lessons, he says, should be learned from the operation of similar measures in criminal courts “as a matter of priority”.

Sir James is now pressing ministers to change the law and provide the necessary funding to improve the situation.

However, I believe that more than spending and statute are required to square this particular circle.

Thought has to also be given to what representation there might be for an LIP unable to pay a lawyer’s bills or question their former partner themselves? Will the cash demanded by Sir James and others be found at the expense of some other area of the legal network?

It is a headache which will need careful consideration by law-makers and the judiciary in order to find an outcome which preserves access and fairness in a manner which serves the family