According to a recent article in the Guardian, the most senior Family Judge in England and Wales (Sir Andrew McFarlane) has stated that Family Courts are having to “run up a down escalator” particularly due to an unprecedented increase in childcare cases.
Ever since the drastic legal aid cuts in 2013, the family courts have come under increasing pressure. Most professionals within the family justice system predicted that the cuts would lead to not only significant injustice in cases, but also a huge increase in litigants in person - As a result, far more pressure exerted on the family court.
The volume of cases has increased significantly since the beginning of 2016. The number of “public children law” applications for care or supervision orders – issued by local authorities - has risen by about 25% . Last year, there were 53,164 new private law cases issued involving 123,334 children.
Ideally, the commencement of legal proceedings should always be a last resort as it can cause further stress for families that are already dealing with a number of issues following a breakdown in the parental relationship. Parents and carers who are representing themselves often have not sought legal advice as to their options and may think that an application to court is their only option. Really, it is only if an agreement cannot be reached between parents that an application to court may become necessary. The removal of early legal advice for separated parents has had a real impact on the rise of applications, further increasing the pressure on court staff and the judiciary.
As family lawyers, we understand the importance of children spending quality time with both parents (when it is in the child’s best interests to do so), and agreeing fair arrangements for children and we understand how challenging it can be if a parent is being prevented from spending time with their child by the other parent. The child/ren at the heart of the dispute will also be impacted by warring parents and it is very important that legal advice can be obtained so that issues can be narrowed wherever possible.
Legal Aid is available for parents/ carers of children subject to care and supervision proceedings, brought by a local authority and early advice is critical to the presentation of any party’s case at the outset. (There are also other public children law applications that fall within the scope of cases for which legal aid is still available but you should speak to one of our advisors as to what the application is and we can advise if it is means/merits tested or not).
Legal Aid is also sometimes available for some private children law disputes subject to the satisfaction of the evidential requirements of Reg 33 and 34 of LASPO (such as evidence of domestic abuse or child protection issues). That is known as “gateway evidence”. However, even with gateway evidence you will be subject to financial means testing and it is important to understand whether you would be eligible for legal aid.
If you find that you are ineligible for legal aid, you can contact our team to obtain information about our fixed fee work that would mean you could receive advice and assistance in relation to your family law matter.
With the school holidays around the corner, please also read our blog on how to avoid contact issues over the holidays. Rather than making an application to the court, we would recommend that you first seek advice from a family solicitor who can guide you through the various options available. In the event a court application is unavoidable, we will represent your interests as best we can throughout. Please call us on 020 3601 5051 for further information or fill in our contact enquiry form.
Head of Family, Kirsty Richard comments
I was practicising family law prior to the LASPO cuts and there is a link in my bio for the interview I did with BBC London in 2011. I had discussed my concerns about how the legal aid cuts would most likely impact those that needed legal advice the most and sadly, like many practitioners, our fears and predictions have been borne out. I had discussed at the time (among other issues) that in preventing parents/carers from getting early intervention legal advice and potentially having to deal with private children law applications (around child arrangement disputes); that would most likely have the reverse effect and instead of saving court time and costs by introducing LASPO restrictions, there would actually be an increased strain on the court system and all professionals involved in this type of work. I also feared that in not having legal advice as to what is reasonable and talking through the welfare checklist (for example) that parents/carers may take matters into their own hands, causing an increase in violent offences and more instances of children being withheld following arranged visits with the other parent/carer. That can then escalate to the involvement of the police which in turn sees referrals to social services and could easily lead to the commencement of care and supervision proceedings. What we have seen since the introduction of the very drastic legal aid cuts is a rise in applications for interim care and supervision orders (ss.31 and 33 of the Children Act 1989) as well as a rise in applications under s.8 of the Children Act 1989. It has caused a massive strain on the judiciary and family practitioners from the Bar and in private practice and at local authorities. It is also widely discussed as to how this is also having a devastating impact on the wellbeing of all of professionals trying their best to deal with surges of court applications and warring families. The early involvement of solicitors/ legal advisors used to prevent disputes escalating in a number of cases and it is the child/ren at the heart of these disputes that suffer the most in these present times.