Some interesting statistics crossed our desk last week from CAFCASS, who have reported a significant year-on-year drop in the number of applications being made to the court for orders about children’s arrangements when parents don’t (or no longer) live together. These applications are generally disputes about where children should live (formerly known as residence, and before that, custody) or how much time they should spend with the parent with whom they don’t live (formerly known as contact, and before that, access).
The figures show that in July 2014, there were 36% fewer applications than there were in July 2013. This significant decrease is part of a bigger picture of declining use of the courts to work out children’s arrangements – the graph produced by CAFCASS illustrates this clearly.
What we don’t know is the reason why. There are various possibilities, of course, some more palatable to the government than others.
A positive spin on the reduction in court applications has seen people suggest that we are starting to see the benefits of the government’s desire to divert more people to mediation. As regular readers will know, we are big fans of mediation at CFLP: three of us are qualified mediators (Simon simply hasn’t got round to it yet) with active mediation practices as part of our toolbox of dispute resolution skills. There’s a vibrant mediation community in Cambridge, and in the wider area. Further, legal aid is still available for family mediation so if you qualify on a means test, you can get family mediation for free from providers who have a legal aid contract – you can find those here.
People coming through to mediation are starting to increase, it’s true, partly because of the requirement for prospective applicants to court to see a mediator for a MIAM (mediation information and assessment meeting) to investigate whether the dispute might be appropriate for the mediation process and to learn more about alternatives to court. It’s also partly that awareness of mediation is growing: whereas a few years ago it was common for mediation to be confused with an attempt to get couples to reconcile, now this misconception occurs more rarely and more people understand that mediation is a way of talking the problem through with someone trained to assist you to work out a way forward.
However, there are two problems with linking a decrease in court applications to an increase in mediation. The first is that there hasn’t been nearly such an increase in mediation as there has been a decrease in court applications – anecdotally, the figures themselves don’t add up. The second is that not all mediations lead to a full settlement of the dispute. A number still require an application to court (or to arbitration) to work out matters that people haven’t been able to agree on. Family circumstances are complex, and disputes are multi-faceted. Although in our experience it is rare that people leave the mediation process without feeling that progress has been made in some respect, not everyone manages to come to a full agreement. The court should still be an option for those who don’t.
Could the number of parents separating have reduced? It’s possible of course but it’s difficult to get statistics for the number of relationship breakdowns. Divorce statistics are available but in an era when only about half of children are born to married couples, they don’t tell nearly the whole story. One suspects that a third reduction in the number of couples with children separating year-on-year would be a social phenomenon worthy of note, and celebration. Frankly, we just don’t think it’s possible to draw that conclusion from the figures.
Could it be that parents are more likely to agree on arrangements for their children after they separate without needing to have any recourse to dispute resolution at all? Well, that would be lovely. Sadly, we haven’t seen any evidence of that that would account for the change in figures.
In our view, the most likely explanation for the huge reduction in court applications is that parents are increasingly finding that the cost of justice is beyond their reach. Since legal aid was all but abolished for court applications in family cases in April 2013, those who cannot afford to pay for legal advice and representation are faced with the choice: mediate, go to court without advice or representation, or don’t bother at all. Mediation doesn’t always have the clear-cut outcome we would want. Although the courts are better set up for litigants in person now than they used to be, not everyone has the confidence or emotional resources to negotiate the litigation maze by themselves, and for those not entitled to an exemption there is still the cost of an application and a MIAM. The third option remains – just to leave it.
Are people just leaving it? This in our view is the most worrying, and most likely, explanation for the drop in court applications. It concerns us because we’re passionate about doing what we can to encourage good outcomes for children after parental separation, and we believe that in general the family court is good at doing this. It helps children who aren’t being supported by the parent they live with to have a beneficial relationship with the parent that lives away; it helps children where one parent is trying to bully the other to accept arrangements that aren’t in their best interests. If the parents don’t have access to the family court, it’s the children that miss out. Without legal aid, it seems that many people are finding access to the court too difficult.
You may know that our Simon Bethel is chair of Resolution’s Children Committee, and as such has a particular interest in helping ensure that children get the justice they deserve if their parents can’t agree on what’s best for them. Last week he was quoted in the Law Society Gazette and the New Law Journal on this issue. It’s because we believe that these statistics need to spark debate outside legal circles that we’re writing about them here. Children’s best interests are everyone’s business.
If you’d like to make an appointment to see Simon, Gail, Sue or Adam about any situation arising from separation or divorce, please give the office a call on 01223 443333.