Can only mediators do MIAMs? Probably not, if you read the statute, not just the delegated legislation. We are after all talking about only ‘information’ – not doing the mediation. Why should not that information be provided by other professionals, such as solicitors, who have the relevant professional information to pass on to potential court applicants? Under the Children and Families Act 2014 s 10 there would seem to be no real reason why not.

CFA 2014 s 10 has put family mediation information and assessment meetings – MIAMs – on a statutory footing. MIAMs are defined by s 10(3) as meetings to discuss mediation and ways in which family disputes ‘may be resolved other than by the court’. A replacement FPR 2010 Part 3 (with lengthy practice direction (PD3A): Family mediation information and assessment meetings (MIAMs)) has followed. In FPR 2010 Part 3 the statutory scheme is entitled ‘Non-court Dispute Resolution’ (‘NCDR’), whereas s 10 speaks only of ‘mediation’.

Mediation is not statutorily defined either by CFA 2014 or in FPR 2010. NCDR is defined as ‘methods of resolving a dispute, including mediation, other than through the normal court process’ (FPR 2010 r 2.3(1)), a negative definition which includes mediation, but which could include any means of resolving an issue between two or more people: tossing coins, armed combat, duelling etc.

CFA 2014 s 10(1) states that before making a ‘relevant family application’, a person must attend a MIAM which is limited under CFA 2010 s 10 to the providing of ‘information’ about mediation – only: NCDR is not touched on at this stage.CFA 2014 s 10(2)(b) leaves it that FPR 2010 ‘may make provision about convening a family mediation information and assessment meeting, or about the conduct of such a meeting’.

Nothing is said in s 10 about who is to provide this information, nor to limit who may provide it. Yet, for the first time anywhere, FPR 2010 r 3.9 restricts the provision of information to ‘authorised family mediators’: ie it limits those who can provide the prescribed information. An authorised family mediator is defined by FPR 2010 r 3.1 as

“authorised family mediator” means a mediator who is –

(a)        subject to the Family Mediation Council’s code of conduct by virtue of his or her membership of a Family Mediation Council member organisation; and

(b)        certified to undertake MIAMs by the professional practice consultant who is supervising the mediator’s practice and who is a member of and approved for the purpose by a Family Mediation Council member organisation;

The question must be: does the provision for ‘convening a meeting’ (per s 10(2)(b)) in r 3.9 exclude all other methods of providing information about mediation per s 10(3)? If it does, is it intra vires the statute?‘Convening’ a meeting, is not the same as restricting that meeting to a particular category of informant. It is not easy to read into CFA 2014 s 10 the limitation which the rules committee have put on who should conduct the information meeting, and to envisage that Parliament would have intended that necessarily another profession be involved in this solely informative exercise.

The question is important since s 10 and FPR 2010 Part 3 inhibit the right to issue process which has been guaranteed (subject to leave in some instances) to people who need help from the courts at least since Magna Carta. And for a potential applicant for a remedy under the procedures in FPR 2010 to work out if they are eligible for an exemption – the only way around the MIAMs provisions – does not make for an easy read.


The child’s welfare, right to a family life and a fair trial

In JG v Lord Chancellor and ors [2014] EWCA Civ 656 the Court of Appeal considered the grant of legal aid for a child in terms of the welfare of a child (rather than in the cold mercenary terms employed by Ryder J (ahtw) in Re JG (a child by her guardian) v Legal Services Commission and ors [2013] EWHC 804 (Admin), who had found for the Lord Chancellor at first instance). This article looks at the case as one concerned with how legal aid may be obtained for children proceedings; for this is the positive message to come out of the Court of Appeal’s firm reversal of Ryder J’s decision. An earlier article (see looked at the case for the law which JG overlooked, and what therefore remains open for children advocates seeking legal aid, to argue in the future.

The Court of Appeal held that the Legal Aid Agency (‘LAA’) was not entitled to refuse the child’s application in October 2008 for funding of a psychotherapist’s report for use in proceedings by the child’s father under Children Act 1989 s 8 (residence or contact). The decision of the Legal Services Commission (‘LSC’: now LAA) was declared unlawful (para [130]). Black LJ concluded on the ‘fact specific grounds’ (para [131]) that:

[129] As I see the … order for the instruction of the expert as in fact made at the instigation of the guardian on the child’s behalf, I do not share Ryder J’s view that the order made in April 2009 fell foul of [LASPOA s] 22(4)….

[130] I would therefore allow the appeal against Ryder J’s dismissal of the child’s judicial review claim and substitute a declaration that the LSC’s decision not to meet the cost of the expert’s report was unlawful.

LAA decision-making: the welfare of the child

In children law terms Black LJ started her assessment of the ‘law framework’ of the case from CA 1989 s 1(1) which she said must be kept ‘well in mind’ (Ryder J had not mentioned CA 1989 s 1 at all). Child welfare marks out family proceedings from other civil proceedings.

[34] … even if the child is not joined as a party to the family proceedings, he or she is a powerful presence in them because his or her welfare dictates the outcome, which may turn out to be different from that contended for by the parents. In order to determine what will serve the child’s welfare, the court needs information so that it can identify and evaluate the options. Some of the information comes from the parents themselves but the court may need information from a more independent or expert source. A welfare report commissioned under section 7 of CA 1989 is one way to acquire this information (see below) but such a report is not always sufficient.

Black LJ said (at para [35]) that, ‘as a family lawyer’, she found the response from the LSC ‘extraordinary’: ‘This case’, the LSC had said, ‘is clearly [the father’s] application for residence’. On that basis, the LSC continued, with their own special brand of children law, the father ‘should pay for the reports [or] the status quo of the mother having residence should continue’. Black LJ commented on this approach thus:

[35] … Such an approach is readily understandable in the context of, say, a civil action for damages; the claimant has to prove his case and unless he pays for and produces such expert report as is necessary, he will fail to do so. However, the reality in children proceedings, where the court is without a necessary expert report, is not that a residence order is simply granted to the mother by default. The court still has to consider the merits and determine what is in the child’s best interests but it will have to do so without the benefit of the expert help that it considered was necessary to assist it in its task.

Black LJ explained further the importance of CA 1989: that s 1(2) imported the principle that delay was likely to be prejudicial to the child; and that s 1(3) sets out factors the court should take into account when deciding whether to make, vary or discharge a CA 1989 s 8 order. None of these had been touched upon by Ryder J below.

Exceptional case: a Convention consideration

Black LJ turns to ‘Convention considerations’ at [95]. Like most of her judgement this was obiter (as she herself accepted: see para [66]) and subjects what she calls the ‘normal order’ for payment of a jointly instructed expert’s expenses by apportionment between both or all parties equally to a Convention assessment derived from the Lord Chancellor’s (per LAA) conditions: that a party cannot pay his/her share of the cost; that the ‘normal order’ would involve a breach of a party’s Convention rights; and the case must be ‘very exceptional’ (the LAA terminology) and to bring it within the terminology of LASPOA 2012 s 10. (As explained in this is a controversial point in itself; but it was not a finding in law on which Black LJ based her decision).

Before looking at Black LJ’s Convention assessment it is appropriate to set out s 10 (as she does at [63]). Under the heading ‘Exceptional cases’, s 10 enables the LAA to grant a certificate if:

(2)… (a) [it] has made an exceptional case determination in relation to the individual and the services, and (b) [it] has determined that the individual qualifies for [civil legal] services…

(3) For the purposes of subsection (2), an exceptional case determination is a determination –

(a) that it is necessary to make services available to the individual under this Part because failure to do so would be a breach of –

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

For the purposes of the court’s decision Black LJ rejected the Lord Chancellor’s argument that s 10 applied to JG; but she did so in terms which may shed an important light on the way in which she might see s 10 in the future were a s 10 issue to come before her:

[110] … whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights. I see no more justification for introducing a specific exceptionality requirement in the context we are considering here than the draftsman appears to have seen in relation to section 10 and it seems to me that it would distract attention from the central question. Granted, we are concerned with a departure from the way in which the court would otherwise have catered for the costs of the expert, so to that extent the order would be exceptional. That is a description, however, not a test or an additional hurdle.

The circumstances of the case might be ‘exceptional’ in the sense of ‘unusual’, but it did not involve the courts in importing s 10 exceptionality into the decision-making process in JG.

Convention rights

The court accepted ‘impecuniosity as read’ (para [96], with further consideration at [111] – [118]). The second only of the above LAA factors – ‘Breach of Convention rights’ (paras [96] – [109]) – therefore need to be considered by the court in this obiter discussion. This is likely to be the battle ground for legal aid applications. (It is disappointing thus to describe decision-making in family law cases, but this tends to accord with the macho approach of LAA’s minister and their own modern ethos.)

Black LJ expressed surprise that not more was made by the parties of the child’s Art 6 (right to a fair trial) rights. She expected perhaps that the Art 6 aspect of the child’s claim might be argued further in the future (see italicised passage below). Her own view on Art 6 was:

[98] I would have expected that the parties would have joined battle over Article 6 in this case, arguing perhaps that the genuine and effective enjoyment by a child of his or her right of access to the court was not secured unless he or she was not only granted legal representation but also enabled to secure and present the evidence that was “necessary to assist the court to resolve the proceedings”….

[99] Given the status of all that I have to say on the general question, I do not intend to dwell on Article 6 of my own motion but I am not convinced that it has materially less to contribute to the resolution of the issues in this case than Article 8 and I certainly do not think it could be said to be irrelevant given that the specific challenge in this case was to the decision of the LSC to refuse funding. Accordingly, I would not wish to be thought to be ruling out reliance on Article 6 should points arise in future which are similar to those which have arisen here.

Black LJ’s position on Art 8 may be said to start from two propositions:

(1)   That cases in which a child is joined are, in any event, by no means ‘commonplace’; and that

(2)   Once a guardian:

[109]… has endorsed the instruction of an expert as appropriate and the court itself has approved it as necessary, there will be the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights will be violated if the court cannot be provided with that expert assistance. Whether the argument will ultimately succeed will depend, of course, upon the precise nature of the decision to be taken in relation to the child.

She floated the idea that the very fact that the court held a report to be ‘necessary’ (now Children and Families Act 2014 s 13(3)) ‘would inevitably involve a violation of Art 8’ (para [104]), but rejected this since each case was so fact dependant; and she drew attention to the failure of the Lord Chancellor’s arguments in that they tended to concentrate on the parents’ Art 8 rights:

[107] … It seemed to me that they did not sufficiently accommodate the special dynamic of children proceedings in which, by virtue of the welfare principle (see §32 above), the court is searching for what is in the best interests of the child, irrespective of the parents’ cases.

The child-centric European Convention 1950 jurisprudence (eg Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593; H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338) was not considered here in terms. Where the balance is fine – Black LJ did not find it so in JG – then in an assessment of the Art 6 or Art 8 balance ‘sequencing’ of rights under such jurisprudence may be called for.

Fact specific decision-making; and a reasoned decision

The decision to find unlawful the LAA refusal to fund unlawful was disposed of relatively easily. The wider issues debated by the court raise more for children and practitioners for the future. Each case will depend very much on its individual facts. Before all is the child’s welfare alongside his/her Art 8 – and perhaps Art 6 – rights (see also Collins J below). Black LJ concentrates on the rights and welfare of the child for all cases where a child is involved – including a refusal under LASPOA 2012 s 10.

The welfare of any child concerned is the starting point for any LAA decision-making; and the basis for a challenge to any wrong decision by an applicant. And Collins J in R (ota T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin) (decided 3 weeks after JG at first instance, but not cited in the judgement) sounds an important reminder. Any refusal by the LAA must be backed by reasons:

[14] … While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.


JG and the Legal Aid Agency

The long awaited conclusion to JG v Lord Chancellor and ors [2014] EWCA Civ 656 was that in the particular case the Legal Aid Agency (‘LAA’) was not entitled to refuse the child’s application in October 2008 for funding of a psychotherapist’s report for use in proceedings by the child’s father under Children Act 1989 s 8 (residence or contact). The appeal against Ryder J’s dismissal of the child’s application for judicial review of the LAA decision was allowed. The decision of the Legal Services Commission (‘LSC’: now LAA) was declared unlawful (para [130]).

The child law proceedings had been started in 2006 by the father. The child was joined as a party and obtained legal aid. Other parties were not legally aided. A report was ordered in October 2008, rendered ‘joint’ in April 2009 ([4] and [5]). An addendum report was ordered in May 2011, to be on joint instructions. The LSC refused to pay because it said, the order for the child only to pay the cost of the report was ‘unlawful’. They cited Access to Justice Act 1999 s 22(4) (Legal Aid Sentencing and Punishment of Offenders Act 2012 s 30 applicable since 1 April 2013). A final hearing due in June 2012 was vacated. Judicial review proceedings, in which the Law Society joined, were heard by Ryder J (ahtw) in October 2012, but not decided by him till April 2013. He accepted that the LAA were entitled to decide as they did, and refused the application for a declaration.

Black LJ concluded on the ‘very fact specific grounds’ (para [131]) that:

[129] As I see the April 2009 order for the instruction of the expert as in fact made at the instigation of the guardian on the child’s behalf, I do not share Ryder J’s view that the order made in April 2009 fell foul of [LASPOA s] 22(4)….

[130] I would therefore allow the appeal against Ryder J’s dismissal of the child’s judicial review claim and substitute a declaration that the LSC’s decision not to meet the cost of the expert’s report was unlawful.

That was therefore what was decided by the court. Black LJ felt the ‘general question’ which Ryder J had sought to answer, concerning the inability of other parties (mostly parents) to contribute to the fees and expenses of ‘expert evidence’ where the court wants expert assistance (para [25]), was not one which she found compatible with judicial review proceedings (para 64):

[64] … I confess to a considerable unease that the judicial review proceedings were used to determine an abstract question of this sort, divorced from the facts and issues that arose between the parties. For very good reasons, that is not normally an appropriate use of litigation. In this particular case, it introduced a complexity which cannot have assisted in the determination of the specific question that required resolution for the parties. One obvious aspect of the added complexity was that the FPR 2010 were not even in force at the time which is relevant to the issue between the parties, let alone in the form which they assumed from the end of January 2013 and which was used to formulate the general question.


She gave her views on the point, however ([67] to [119]), but stressed that what she said was obiter

[66] Because I am conscious of the widespread concern that underlies the general question and of the importance that has no doubt been attached to Ryder J’s decision, I have incorporated in this judgment my thoughts on it, though what I say is not part of the ratio of my decision any more than what Ryder J said on the question can have been part of the ratio of his decision. Ultimately, I do not know of how much assistance this will prove to be because I have concluded that there is no universally applicable answer and that everything will depend on the facts of the case under consideration.

What the case did not say

JG was decided on its own facts, and perhaps on an unlawful order (if the court purported to appoint a joint expert: see reference to Rules of the Supreme Court 1965 Order 38 below). The legal background to the case, and what it did not decide, leaves a number of important issues very much alive. These are likely to come up for decision before too long.

Confusion between costs and funding

As with Ryder J below, the court did not distinguish between (1) the funding of proceedings – money which must be provided in advance or as preparation for a case – and (2) the costs of the proceedings: who, where appropriate, should pay the lawyers and other bills (disbursements) for the case? Those costs may fall where they lie; or they may be ordered to be paid by one party to another. The courts only have statutory power to order costs (ie redistribute ex post facto the expenses as costs: Senior Courts Act 1981 s 51). There is no statutory power to do as the LAA was seeking – and will no doubt continue to seek, in cases like this: to require that fees and expenses be paid in advance. FPR 2010 r 25.12(6) – ‘Unless the court directs otherwise, the relevant parties are jointly and severally liable for payment of the experts’ fees and expenses’ – implies that the court has power to ‘direct’ such payment. There is no clear statutory underpinning for this.

The two cases relied upon by the Court of Appeal ([87] to [90]), starting with Calderdale MBC v S and Legal Services Commission [2004] EWHC 2529 (Fam), [2005] 1 FLR 751, Bodey J deal with orders for costs under SCA 1981 s 51. DS (see below) to which reference was made was a ‘guidance’ case and did not decide anything.

Justification on ‘taxation’

Of the trio of cases relied upon by Black LJ at [87] etseq A Local Authority v DS & others (Legal Services Commission in attendance) [2012] EWHC 1442 (Fam), was a case in which Sir Nicholas Wall P was persuaded to give ‘guidance’ where the then LSC refused to pay a fee ordered by the court. At para [38] Sir Nicholas commented as follows:

[38 To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubted the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision of the LSC is Wednesbury unreasonable or can be struck down for any other public law reason, is to apply for judicial review.

After he had written his guidance Sir Nicholas received two more documents from LSC, which he appended to his ‘guidance’ and which included Applications to the LSC for Prior Authority for Experts of October 2012 (now rewritten as Guidance on the Remuneration of Expert Witnesses (April 2013), and including at Part 4 ‘Prior Authority in Family Cases’). The first of these guidances includes that a refusal of authority ‘does not mean that the cost of an expert will not be met. Refusals may take the form of telling the solicitor to “justify on taxation”’.

As ever, therefore, solicitors may be paid, following detailed assessment, if the court so orders. The High Court did not consider the basis on which legal aid bills (‘remuneration’) are ultimately paid. It may seem unlikely that a costs judge would refuse to order payment to a lawyer, where another judge had ordered that a report should be obtained and be paid for by the LAA. The same point – a refusal to comply with a court order – was considered a few weeks after Ryder J’s decision in the Administrative Court by Collins J in R (on the application of T) v Legal Aid Agency & ors [2013] EWHC 960 (Admin) (‘T’) was decided three weeks later by Collins J. T, it could be said, was the only decision of its kind on the merits.

Neither that case, not the detailed assessment point seem to have been considered by the Court of Appeal in JG (and see ‘Children Proceedings: LAA authority and the case management decision’, David Burrows [2013] Family Law August at 1056).

Joint instruction of experts: unlawful at the time

This point is only relevant to the JG decision, but it seems to have been overlooked that the regulatory source for instruction of experts in children proceedings till April 2011 (the date of coming into operation of FPR 2010 Part 25) was RSC 1965 Order 38 which applied to all family proceedings (save ancillary relief proceedings, to which CPR 1998 Part 35 was applied). There was therefore no power in a family court (save in financial remedy proceedings) to order a joint expert report; unless a judge could be persuaded that the common law had overridden Rules of the Supreme Court 1965. The case might be based in any event on an unlawful premise. This may render what JG did decide a little shakey.

Human rights considerations

Comments were made by Black LJ on the relevance of a child’s rights and European Convention 1950 Arts 6 and 8 to LAA decisions; and especially in the context of LASPOA 2012 s 10 (exceptional cases). This calls for further comment soon.



If no agreement: pay for your child support

There has been a variety of press publicity over the last couple of days about new child support plans – first that couples must agree amounts of payments of pay fees for continued use of a child support ‘service’. The Child Support Agency, it is said, is to be abolished; but the statutory scheme under Child Support Act 1991, I assume, will go on. The scheme is still based on that same Kafkaesque convolution of a five times amended statute (the 1991 Act is twice as long as when it started) supported by a forest of sub-statutory material; involving seven different court systems (one added with the family court being now in the armoury) and five sets of different court rules.

The scheme is still run by the same Department of Work and Pensions. Just as a rose by any other name will smell as sweet, so too a slug is a slug whatever you call it. And it should be noted: the very existence of such an impenetrable and badly drafted set of legislation is an affront to justice in itself. If a person cannot understand the law which affects him/her, then that in itself creates injustice.

History of the scheme

The scheme took calculation of child maintenance away from the family courts in April 1993 because the judges failed to come up with a consistent figure for periodical payments (liable relatives formula, foster parent rates, DSS rates), they let too many men off (thought Mrs Thatcher); there was no index-linking; and private law enforcement procedures were too inefficient. The result was that too many children became the liability of the tax payer; and so was bred a scheme which was, otherwise inexplicably, linked to the then Department of Social Security. Had someone told Mrs Thatcher of Social Security Administration Act 1992 s 106 (liable relative payments: still on the statute book) which would have done the job she wanted, the whole sorry Child Support Act 1991 debacle could have been avoided.

So what was needed: a means of deciding the amount to be paid (with index-linking built in to the decision); a means of resolving appeals from such decisions; and an efficient scheme for enforcement. An aim of the 1991 Act was to fix a figure for payment: that has been done very effectively (now: the initial formula was needlessly complex). The two schemes effective since 2003 have at last provided a sensible yardstick, and a means for payments to be linked to the index of the payer’s income.

Beyond that there are still many payers who can adjust their income so it is less than their children might expect; and there the absurdity of it all begins. The whole purpose of an administrative scheme – at least since Dr Dicey in the late nineteenth century – is to reduce to a minimum the extent to which the decision-maker is able to exercise discretion; whereas one of the main tenets of most areas of family law is to entrust wide areas of discretion to judges. The consequence, for child support, is a 800 page source book, which only a narrow priesthood of specialist lawyers (mostly tribunal judges) can actually begin to understand. That source book, with other guidance, is required to define the child support scheme. In a comparable source book for child periodical payments some 10 pages are required: the judge does the rest by determining the amounts to be paid and in a fraction of the time child support takes to work out.

Enforcement and appeals

Enforcement – the second element of a successful child support scheme – as operated under the 1991 Act is absurdly cumbersome (five courts are involved, inexplicably). How much will this change with the brand new CMS? The elephantine enforcement statutory provisions remain; but an elephant to chase an evasive tiger of an avoiding payer parent is not a good idea. Will recipient parents be permitted to take their own steps, privately, if they chose? Under the present law they cannot: they must await the meanderings of the CSA elephant.

Child support appeals are consigned to the administrative tribunals appeals system because of the historic links of child support to DWP. Delays in the tribunals are endemic. They have no thought of the effects on children and their needs as these delays extend. Child support appeals just have to take their turn. A simple discretionary decision might require a minimum of documentation and a fraction of the time to be disposed of. Fairness would be no less, by most people’s standards.

Child support: the future

What to do? The good to come out of the scheme is the concept of a yardstick figure with which most parents agree; and acceptance that payment be linked to a payer’s pay. If that is the starting point which is taken by an administrator, then appeal could be direct to a district judge (the 800 page source book would by now have been torn up), the appeal would be disposed of by the district judge adjusting the formula figure according to what he heard on the appeal – listed and disposed of promptly; and then failure to pay would be met by well-targeted enforcement. Already Family Procedure Rules 2010 have introduced the means of payment enquiry (tucked away modestly in r 33.3(2)(b)) which would be an excellent starting point: it could even be rolled up as part of the appeal process in some cases.

Children’s needs in many cases are not being met by the present scheme. It should have been predictable. Only a foolish – or stubborn, or both – government persists with the present labyrinthine scheme. If the scheme announced yesterday runs under the existing statute with the same old CSA decision-makers, but now called by a different name; well that slug will still be a slug and children will remain unprovided for. The malign difference will be that , if what is proposed is true (I must hold my fire on this because I have yet to see the statutory basis for what is being suggested), then couples will have to pay for the disasters which so far then have had to watch unfold over their cases but without payment.

Mediated child support arrangements

And what of the fresh conciliation breeze which is said to be blowing miraculously through all these relationship breakdowns? Yes of course agreement is better. Promoting agreement has been the statutory duty of the CSA since 2008 (see Child Maintenance and Other Payments Act 2008 s 2(2)(a): duty of decision-makers to promote voluntary maintenance agreements). If they have failed to do it for the past six years, what will be different now? A statute and a set of regulations defining what is to be paid to the last penny, and minds which are brought up in such a scheme, are not easily associated with the concept of mediation and agreements (as the six years – since s 2(2)(a) came in – has shown).

Step back, then, from all the hype on agreements: it is worth recalling that one reason parents separate is that they cannot agree about things. The CSA has a long history of turning niggles between parents into near outright war. How easy will it be to turn the slug at least into an elegant smooth-shelled snail? How easy will it be to turn the decision-maker who is used to fobbing off parents whose arrears have passed the £10,000 mark and still are increasing, into a mediator who will smooth the path to settlement? And more fundamentally, how will child support mediation work with wider issues which need to be mediated on relationship breakdown?

My belief is that till the scheme is massively simplified, especially on enforcement, and more aspects of it returned to the control of private individuals, then the recent proposals – so far as they are defined at this stage – will only make things slightly worse for most children; and will do nothing to clear the massive – but still enforceable – arrears bill.


Into the labyrinth of procedural law

Family breakdown law and the legal system by which it operates are under siege. The circumstances in which this happens – in relation to legal aid – was easily predictable, as Legal Aid Sentencing and Punishment of Offenders Act 2012 drastically reduced the availability of legal aid. The second aspect of the problem the lack of approachability of legal process, and law – has been with society, to its shame, much longer; and for that reason the problem is more insidious.

This article is prompted by the real concern which many lawyers – especially family lawyers – have at the difficulties for litigants in person in the present family breakdown legal process. It is intended to start a debate over the conflict which the legal system faces if legal aid is to remain so reduced; and to look at how law can be democratised and made more approachable. It must happen if the system is not to grind to a halt under its own failures of fairness.

The main deterioration in legal aid availability has been in family proceedings. Save for first instance care proceedings, domestic abuse (subject to what is said below) and a tiny range of other proceedings legal aid had disappeared overnight. And yet those who frame further family breakdown law do little to recognise its increasing impenetrability for judges and for those it is designed to serve (the family litigant and children). Inevitable, individuals who come before the court suffer – at one of the most difficult times in their lives – as legal representation is denied to all but the rich or those who, one way or another, can find the means to pay.

Meanwhile, the legal process remains relentlessly complex. The latest batch of procedural and practice reforms for family proceedings – introduced on 22 April 2014 – bear witness to that. Rules of evidence and of procedure, which many trained lawyers find perplexing, the average lay litigant is likely to find as if in a deep labyrinth. In their efforts to find a way out, with no lawyers to assist them, they will be at the mercy of the judiciary. But how much law, in reality, can the average judge – unaided – hope to assimilate and to apply to each of a massive spectrum of cases. Beset they will be, by civil and (in the case of circuit judges) criminal law (where often they will be helped by legal aid trained lawyers) and a variety of four and more different sets of procedural rules.

The day of the un-‘help’-ed judge – Sir James Munby’s ‘cusp’ of family law history – will have its own dangers, the cusp blunted by the weight of its welter of practice guidance. Many judges have grown up expecting to be able to rely on lawyers to ‘help’ them – ie to tell them what the law is. There is no shame in that; but where there are no lawyers, by definition judges must find out the law for themselves. In the generalist reaches inhabited by circuit and district judges through most of the country, fo them to keep up with and adjudicate fairly upon all areas of law (including criminal law for circuit judges) without help from a specialist profession (outside crime and care proceedings) seems to demand almost super-human feats of assimilation of interminable verbiage.

Clarity in law

The real sticking point in all this is the way that procedural law has developed, especially since 1991 (the post-Children Act 1989 proceedings rules). The drafting of substantive legislation, especially in family law, has improved radically with and since Children Act 1989 (Child Support Act 1991 was a backslide); though much remains to be done. This note is not aimed at substantive law, however. It is aimed at those who draft procedural law. This is the law (to use the term loosely), which guides the common law and substantive law – and the parties and the judges, too – through the court process.

Those who draft these procedural laws and practice guidance have not yet woken up to the fact that many cases will no longer have lawyers; and that judges will be on their own to deal with the whole case alone, with only the parties in their courts. From the evidence of court reports alone, quite apart from anecdotal evidence, judges – even up to the court of appeal – get it wrong; and that, even with lawyers in court to assist them. If that happens in Court of Appeal and High Court reports what is happening all over the country; and when that is multiplied by all the wrongnesses which judges are committing, where is the rule of law and a fair trial then?

Law reform: a matter of good manners?

As a matter of good manners, as well as of human concern to help, you would think that against this background Family Procedure Rules Committee (for rules) and the President of the Family Division (in respect of various and varied practice directions and guidance) might have thought to pay particular regard to trying to make the procedural rules more simple. It is indeed their statutory duty. Courts Act 2003 s 75 asserts:

(5) Any power to make Family Procedure Rules is to be exercised with a view to securing that—

(a)the family justice system is accessible, fair and efficient, and

(b)the rules are both simple and simply expressed.

The reforms introduced for the new family court are extensive, diffuse and sometimes of dubious lawfulness. If their lawfulness is gauged by s 75(5) more provisions than those already probably illegal would be annulled. Cumulatively – and often individually – they are neither accessible nor fair. The reforms show little concern to construct a coherent procedural structure.

And the litigant in person is confronted by this multi-documented structure. S/he is unlikely to have the knowledge or the competence to challenge any of its vires. S/he must cope with it as it is. Thus, for example, take a parent who wants a child arrangements order. This is the staple of much family litigation – a custody or access order as was pre-1991 (and as still is to most members of the press and many lay-people). For such an order (new under Children and Families Act 2014 s from 22 April 2014) the parent must negotiate some or all of the following (a lawyer who was doing his/her job properly should be familiar with all of these provisions, as must the judge be):

  • Children Act 1989 Parts 1 and 2
  • Children and Families Act 2014 ss 10 and 13 (and possibly bits of Crime and Courts Act 2013 Sch 10)
  • Family Procedure Rules 2010 parts 1, 2, 3, 4, 5, 6, 12 (Chapter 3 etc), 16 (perhaps),18 and 21-28
  • Practice Direction 12A: the Child Arrangements Programme (and must know which parts are not intra vires the Act and rules)
  • Other practice directions: eg PD27A re court bundles (see Re R below)
  • The Family Court (Composition and Distribution of Business) Rules 2014
  • Various case law

Some of the family proceedings rules will also require reference out to other rules (CPR 1998, County Court Rules 1981 etc especially in the area of costs (eg the other spouse is represented and her lawyer claims costs) and enforcement). This Russian doll approach to procedural law-making – if it is law: much of it may be ultra vires the provisions of s 75(5)(b), above – is hardly fair on either judge or litigant (represented or not).

Laziness of family law reformers

An unintended result of the English legal aid system is to have made family law reformers lazy. Reforms embodied in Family Procedure Rules 2010 have given professional lawyers and litigants in person alike an increasingly impenetrable mass of delegated and sub-delegated procedural law making. That has worsened substantially with the uncontrolled outpourings in the run up to 22 April. Alongside the disparate statutes – Children and Families Act 2014 and Crime and Courts Act 2013 Sch 10 which have brought in the family court – Family Procedure Rules 2010 have been amended piecemeal. Rules and practice directions of dubious legitimacy abound; and judges assume that they are bound by them (what is an honest family judge to do if s/he thinks the provision which the President directs him/her to apply is unlawful).

In the discretion-based system which many judges think family law to be, the outcomes of their cases will be increasingly difficult to predict (especially when it is realised that local courts are being encouraged to issue their own local practice directions). The judge will no longer be able to ask an advocate’s assistance on a question of law. The rule of law – it is not pompous to assert it – will suffer; and not from any lay litigant’s fault. The cumbersome nature of the emerging beast will be its own destroyer.

Case management and the litigant in person: towards an inquisitorial approach

Into this brew of family law and procedure must step the litigant in person: the individual who cannot afford the fees which many lawyers charge for the procedurally complex job lawyers are called up to do (a client on state benefits must still produce a variety of barely relevant financial information with a clutch of documents including his/her last twelve months bank statements to pursue even the most basic of financial claims). What can be done to help them; and what done – in the process – to improve the family breakdown law system of justice?

The first thing is to see case management and court process up to trial as a cooperative effort: judge at the apex and the parties define the issues, define the evidence required to deal with those issues and how that evidence (and by whom) will be marshalled and presented at trial.

CPR 1998 Part 1 which lead to FPR 2010 Part 1, and especially FPR 2010 r 1.4 are a helpful starting point. Ink from learned writers is being spilt over whether civil litigation should be ‘inquisitorial’. That process started in 1995 (at least) and with CPR 1998 r 1.4 and now FPR 2010 r 1.4 the move towards an inquisitorial process is well underway. The problem in many family proceedings is that judges do not comply with their ‘duties’ – their inquisitorial role – (as defined in r 1.4(3)). As a start, following any case management appointment a written set of issues should be pinned to the court file and copies sent to all parties; and then the list of factors in r 1.4 should be ticked off each time, and dealt with as appropriate. Call it case management, inquisitorial, interventionist, good sense – it all comes to the same thing. And then litigants in person go away feeling at least that their cases are being dealt with in  a way they broadly understand.

Democratisation of procedural law

There must be one set of default civil proceedings rules, with family proceedings rules diverging from those (eg in children or domestic abuse proceedings) diverging only where need be (as with Family Proceedings Rules 1991 and earlier rules). Thus there would be no need for three different schemes for expert evidence in family proceedings (fun for lawyers, perhaps; but mysterious for laypeople).

Alongside this, and incorporated into one set of procedural rules which apply consistently in all areas of the family court (ie no, but no, local practice directions) gradually – say over 18mnoths – must be poured back in all the variety of rules – the child arrangements programme – masquerading as practice directions. They are not: they are procedural rules and should go through the proper statutory and democratic process to be such.

Finally begins the real task: to make all of this clear and simple (per s 75(5)). Life is often not simple: that can be why people go to court. Law is not always simple. There is no reason why procedure should be complex. We owe it to society as a whole, especially to litigants in person, and as the beginning of democratisation of law, to make it procedure as simple and as understandable as it can be.