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This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

Two tier family justice system?
 Briefing 
Date
07 July 2015

Two tier family justice system?

Last week the Ministry of Justice released the latest Family Court statistics for the quarter from January to March 2015.

Hidden within the 27 page report is an extraordinary table illustrating the dramatic change in the incidence of legal representation in cases involving separated parents since 2011.

The quarterly statistics from January to March 2011 indicate that:

  • In 50% of cases both parties had legal representation
  • In 30% of cases only the Applicant had legal representation
  • In 10% of cases only the Respondent had legal representation
  • In 10% of cases neither parent was legally represented

The statistics for January to March 2015 paint a very different picture:

  • In only 24% of cases both parties had legal representation
  • In 36% of cases only the Applicant had legal representation
  • In 10% of cases only the Respondent had legal representation
  • In a staggering 30% of cases neither parent was legally represented

These statistics give the starkest indication of the consequences of the withdrawal of legal aid for separated parents and their children.  

For parents, court proceedings in relation to the care arrangements for children are, typically, highly emotionally charged, arguably more so than any other form of litigation.  Without clear, sympathetic guidance it is difficult for parents to navigate their way through the legal principles and procedures applied by the courts. 

And yet in 76% of cases before the Family Court at least one of the parents is unrepresented.

Remarkably, the Ministry of Justice's report also suggests that where neither parent is represented cases are concluded three weeks more quickly than when both parents are represented (14 weeks compared to 17 weeks).  And where only Applicants are represented case cases are concluded six weeks more quickly than when only Respondents are represented (12 weeks compared to 18 weeks).

Obviously, reducing the time that these cases take to reach conclusion is in the best interests of children; not least because the questions before the court will typically be with which parent the child should live and / or how frequently should they see their non-resident parent.

But "conclusion" in the context of litigation can mean many things: judicial determination, settlement, withdrawal or abandonment of application. 

While there is currently no clear evidence to support this, it is predictable that the greater speed with which cases are  concluded where neither parent is represented or where only the Applicant is represented arises from a higher than average number of cases being either withdrawn or abandoned or settled without a full exploration of the relevant underlying issues.