Reflections on 2013 (part one)

In the first of a two part feature, solicitors from Stowe Family Law LLP reflect on significant developments in family law during 2013.

mark christie stowe family lawMark Christie

On 1 April 2013 the Government removed legal aid for the majority of private family law cases.

At a stroke, legal aid was no longer available for divorce and separation, disputes about children, financial remedy proceedings, as well as any advice or action in relation to related matters such as separation, co-habitation and pre- or post-nuptial agreements.

The result was fully anticipated by lawyers and social services, but not, surprisingly, by the Government. Thousands of people have been denied access to professional legal advice, vital in enabling them to resolve important and far-reaching family issues.

Another knock-on effect, one we saw almost immediately was an increase in litigants in person, and the resulting strain on courts already struggling to cope with the volume of cases that need to be dealt with.

It seems that the price to be paid for some expedient short term savings is an immeasurable strain upon the courts. Suddenly many people lack access to justice, and we must also consider the hidden costs of family breakdown – on the health services dealing with ill health and sickness; on employers dealing with absence from work and loss of productivity; and on the Police, who must deal with an increase inviolence as a result of there being no accessible recourse to justice.

This one single measure has done more to damage and undermine the British legal system than any other measure and it is a tragedy for justice.

I suspect we will eventually realise that the unquantifiable cost to society of the legal aid cuts will far outweigh the short term savings.

 

Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. A long-standing member of Resolution, he is also a member of the Law Society’s Family Law Panel, which means his expertise in family law has been rigorously and independently assessed and accredited. Mark has specialised in family law for more than 30 years and provides clients with a wealth of practical experience.

 

Marilyn Stowe Marilyn Stowe

There has been a substantial fall in referrals to mediation this year. It’s hardly surprising. Mediation is introduced far too early for most, for people are not emotionally or legally in a position to settle. Those who were eligible for legal aid before its abolition were required to jump through the mediation hoop – attend a MIAM and be assessed for mediation. This kept the figures high, but most who went through the process were not considered suitable anyhow.

Private paying clients in the main see no advantage in wasting time and money on a toothless process when for most, full frank and accurate financial disclosure and discovery will be required. You may think I’m anti-mediation. I’m not. I am for mediation at the right time. I’m also a fan of counselling. I’ve seen positive results from everyone who sees a good therapist.

So what I’d do, to keep the entire process as cheap and commercial as possible, is introduce consideration for counselling for everyone caught up in family breakdown, in the same way we now carry out MIAMs. This could be financed by the state in the same way legal aid is still available for mediation. I’d oblige each party to spend time with an experienced therapist to consider their suitability. For a relatively small fee, compared to the money that can be spent arguing in court, therapists will help each party get their head straight and get each party focussing on what’s important – i.e. the practical side and the future. Therapists can also help the one-time couple to shed all the useless emotion which will have built up inside them both. I’d do this because the vast majority of couples don’t think they would benefit but in fact they would.

I’d then introduce a sharper system for ancillary relief. This would still require a court to govern the process, but there would be a mandatory ‘stay’ (pause) after disclosure has been completed, for mediation. If either party refused, the case would proceed on to a final hearing but with the risk of a costs order tacked on.

 

Marilyn Stowe is founder and Senior Partner of the firm. With more than 30 years of experience handling divorce cases and family law proceedings, she is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA. 

 

Photo of Lady Justice by Monocle via Flickr under a Creative Commons licence

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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22 comments

u6c00 - December 30, 2013 at 11:16am

In general I’m in favour of mediation, and I always suggest it to anyone when they ask for advice but…

My bone of contention with the new requirement to attend mediation is that it introduces a delay to Children Act proceedings where there is a long established doctrine that delay is inimical to children’s best interests. The particular cases where this is a problem is where party has removed the children or stopped contact.

These cases don’t fall into the emergency exemption on the FM1, but having to wait 4 weeks for a MIAM, then another 6 weeks for the first court appointment is a long time for a child not to see their parent.

Now if mediation were required after the first directions appointment and after CAFCASS had given their recommendations that would be progress.

Perhaps they could send parents on the Separated Parenting Information Programme at the same time when it’s early enough to do some good. It might be good if parents could access this course without having to go through court first, so that fewer cases ever get to court.

stuart - December 30, 2013 at 6:32pm

Oh come on Marilyn. Compulsory Counselling for everyone caught up in Family Breakdown? Absolute nonsense.
For therapy and counselling to be beneficial and effective the subject of the therapy needs to take responsibility and want to change. That person needs to be honest and willing to participate – no therapist can force this upon them however effective they may be. Of course counselling and therapy can be highly effective – but it must be driven by the individual – not the therapist. You can take a horse to water but you cannot make it drink. Perhaps stick to legal advice rather than giving opinion on something that is clearly not your territory or expertise.

Marilyn Stowe - December 30, 2013 at 6:35pm

Dear Stuart
I have been involved with over 12000 people in my career gong through family breakdown. I think I have a little more knowledge and understanding than most.
Regards
Marilyn

Burnt B - December 30, 2013 at 6:40pm

Dear Marilyn
What personal experience do you have of family breakdown, or indeed, counselling?
Please do inform me, as I find your comments most interesting, but some what one sided!!

stuart - December 30, 2013 at 7:14pm

Hi Marilyn
As a doctor I have 25 years of experience in helping patients with mental health issues and emotional distress. You simply cannot make people have successful therapeutic interventions when they are not motivated to engage. I am sure you have experience of family breakdown, but I doubt you are an expert in managing mental health problems.
Regards
Stuart

Marilyn Stowe - December 30, 2013 at 7:18pm

Dear Stuart
By reference to counselling I dont mean referring those with mental health issues. I do mean people going through emotional trauma. Counselling helps put things into perspective. It sorts out the negative, helps people to accept be positive and move on. It does assist people going through marital breakdown, bereavement etc. I have referred a number of clients for counselling, every one of whom reports positive feedback.
Regards
Marilyn

stuart - December 30, 2013 at 7:26pm

Marilyn
That counselling is effective is not in dispute. When used appropriately, of course counselling is effective and beneficial, whether for those who are distressed, or in more severe cases of emotional dysfunction. I work closely with therapists and patients and have very considerable experience of the process.
You are advocating compulsory therapy for everyone caught up in family breakdown. This is unworkable and unrealistic and not thought through. You simply cannot force people to engage in this sort of process – it has to be driven by the individual. Otherwise it simply will not work.
BW
Stuart

Marilyn Stowe - December 30, 2013 at 9:00pm

Dear Stuart
You cannot force people into counselling any more than you can force them into mediation. I am a trained mediator and I know when it is most likely to work and when it won’t. Equally with all my experience of people going through the trauma of divorce I do recognise when counselling will help and I think it would be right to offer it at the outset when in my experience people are at their most vulnerable and traumatised. Of course not everyone will take it up, but I believe many more would. It would help them to talk through their feelings, in many cases their guilt, their anger, shock, denial and ultimately with acceptance, it would help deal with all the negative aspects of marital breakdowns and put them in a better position to deal with the legal side.
Regards
Marilyn

Burnt B - December 30, 2013 at 8:15pm

Dear Marilyn
I am a trained counsellor, with over twenty years experience in mental health issues.
I agree wholeheartedly with Stuart.
It is a sad reflection on society that people like you make such comments with such limited understanding, insight or training into mental health.
Have you had personal experience in any of the situations you consider yourself an expert on?
I have, and know first hand how dangerous those with a little knowledge about mental health, but lots of power, can be!!!
Why not make it mandatory for judges, and those in powerful legal positions, such as yourself, to receive such training.
Then you will be able to make informed judgements!

stuart - December 30, 2013 at 9:26pm

Thank you Marilyn.
Offer counselling – yes of course. That is obvious, appropriate and common sense. Get your legal colleagues to do this please.
But you have written:
“So what I’d do, to keep the entire process as cheap and commercial as possible, is introduce compulsory counselling for everyone caught up in family breakdown.”
“Compulsion” is quite different from “Offering”.
But at least we got there in the end!!
BW
Stuart

Marilyn Stowe - December 30, 2013 at 10:15pm

Dear Stuart
Ive amended my post to make my position clearer.
Regards
Marilyn

Luke - December 30, 2013 at 9:54pm

“At a stroke, legal aid was no longer available for divorce and separation, disputes about children, financial remedy proceedings”
====================

I think this statement is a bit misleading, I believe that it was only available to SPECIFIC individuals meeting certain criteria – giving them a massive advantage in court against the other party and in my view creating an even more expensive and unfair system of justice.

Tristan - December 30, 2013 at 10:19pm

When couples go to court, if they are honest they will want adjudicated decisions swiftly made. If they are devious they will remain content to drag the process out. Compulsory counselling or mediation are likely to favour the latter. Nothing like adding on a few months in pointless exchanges to consolidate a newly-gained position of control over the children in the aftermath of separation. High conflict disputes will always require resolution by courts as one or both parents are either abusive or loopy. Counselling or mediation will help neither.

John - January 3, 2014 at 3:23pm

Having experienced marital breakdown caused by adultery, I found that mediation was a disguise in order that I was compliant with the wishes of respondent and also Family Court systems. There were attempts to ‘cajole’ me in order that favourable conclusions would suit the performance targets of the court system and worryingly to suit the needs of the respondent.

In essence, I was the victim of an adulteress ex-wife, and a victim of what are ‘flawed’ family courts systems, run and governed by those with little or no idea of what a favourable outcome would be for both parties.

My punishment for failing to comply with the flawed systems and the respondent, was to be ‘pillaged’ financially by a ‘man hating’ Judge, and deprived of contact with children, as their mother continually broke contact orders imposed upon her, via my expense, whilst the court stood idle and did nothing to deal with her contemptuous activities.

is it any wonder, that grown men dress up as Batman and other Super heroes to get their point of view heard? or do they need counselling?

Tristan - January 3, 2014 at 4:06pm

It is no wonder, John, and the fact is, judges took no notice whatsoever of fathers until Batman took the stage. I have not seen my child for fourteen years, alienated from me before he was even a teen, a state of harm induced by his mother and fully endorsed by a court, 100%, in its failure to enforce my contact order and deal with her criminal contempt of non-compliance of a court order.

Batman at least brought it all to the occasional attention of a wider public. It still largely goes on though in hidden hearings where secret justice is disguised by children’s “wishes n’ feelings” reports backed up on the outside by the likes of a Children’s Commissioner who advocates that children of separated parents shouldn’t have to have contact (i.e. with a father) if they don’t wish to see him. In South Africa, this policy of separate development went under the name of apartheid.

JamesB - January 3, 2014 at 4:08pm

Sad to read that John. It is my experience as well and does contradict Marilyn’s point that a final hearing should be fair.

I know a clever chap who just jacked his job in and went to university for years then training while his kids grew up, then became a barrister when the liability went away when the children grew up. I can understand his POV and walking away from the system and understand why so many do. However, 18 – 19 years is a long sentence though, especially where you have done nothing wrong.

Thing is if you tolerate this then your children will be next and I think the way to change it is massive non compliance and voting with feet as is happening with declining marriage figures and maintenance amounts. To go along with the system is to support it.

I took the same approach as you and got hammered as did you. They – (the establishment) will not get anything from me or my kids condoning this corrupt law ever again.

Anyone can be caught and scammed once (as family law is) but to be caught twice you are partly to blame. I aim not to be caught again or for my kids or as many others as possible to go through the system as is and as you and I have found it to be.

JamesB - January 3, 2014 at 4:09pm

Not should be fair, will normally be fair. Should say above.

JamesB - January 3, 2014 at 4:11pm

It is a bad system and the answer is binding pre nups on all matters to do with family law (in my opinion).

Name Witheld - January 4, 2014 at 10:51am

Tristan and James B. I am sad to hear of your personal problems and what appear to be unfair outcomes from the Family Court Systems.

I think that it can be taken that we share similar sentiments regarding fathers in separation or divorce.

I raised one of my sons from the age of 12, whilst his brothers where kidnapped, and were held to ransom for maintenance….and then there was the debacle known as the CSA. A not fit for purpose, shambles! I paid my maintenance through this interference in my private family life, but I also counter claimed for maintenance for the son residing with me. How dare I? was the attitude from the mother and the CSA, and low and behold the CSA gave a nil assessment to the mother. How convenient! A trip to my M.P. and exposure of the corrupt practices of the CSA, obtained maintenance from his mother some two years later.
The son I raised, went to University, obtained an Honours degree and has a well paid job. The children with the mother are now adults, they are ‘lost souls’ in need of ‘anger management’, as a result of broken contact with their father, caused by failings in the Family Court systems, and a bitter mother, who has become a victim of her own ‘control freakery’!
In reflection, I’m not proud of the way that things have turned out, and I have my own failings in this saga, but the alternative would of seen me as a ‘down trodden’, compliant ‘at all costs’ man, to suit the needs of an adulteress mother and a flawed Family Court system. That was never going to happen!

Tristan - January 5, 2014 at 10:53pm

I, along with half a dozen other fathers plus the odd mother, could contribute to a definitive book on parental alienation or P.A.S. There is no doubt that the current legal setup for resolving parental disputes – particularly court dumbos who act as mouthpieces for alienated children to express their bile through wishes and feelings reports – plays a massive part in the development of parental alienation syndrome maybe as much as the behaviour of the alienating parent herself.

The failure to confront alienation and propose how the Children Act deal with it represents a major failure of the Norgrove review. P.A.S. must be properly recognised and dealt with in a legal, statutory sense through first, an assumption that each parent should have maximum contact with the child post separation (consistent with that child’s best interests) and second and most importantly, the court must take into account the attitude and willingness of the parents, particularly the custodial parent, to facilitate and foster the other parent’s access to and relationship with the child.

Those two provisions above must be written into Children Act law. That, plus the overriding welfare principle are the only real things that matter when deciding cases. The welfare checklist as it stands now is just a load of meaningless, statutory baloney and ought to be scrapped.

Stitchedup - January 6, 2014 at 11:58am

P.A.S. does not only affect childeren it also affects those 18yrs+. It can go on for decades perhaps a lifetime

Tristan - January 6, 2014 at 7:18pm

Hi Stitched. I have a twenty six year old I haven’t seen since the age of ten. Blown out by a ‘wishes and feelings’ report at ten, despite a contact order and I gather the feelings is just as strong today. Such was judicial practice in the Good Old Days. I don’t think anyone had heard much about P.A.S. back then.

The only effective remedy against it is a legal presumption of maximum access for fathers too. Time spent with your child away from ‘mum’ stops P.A.S. taking root. The trouble is, having a clown as children minister who has a vested, family interest in the business of adoption himself, we’ll have to wait another ten years.

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