Justice For Families

23 January 2008

We received a petition asking:

"We the undersigned petition the Prime Minister to Set up an investigation into the cost of legal representation in family cases and see if it would be better to transfer a proportion of such funding to counselling and therapeutic work for those involved. In short stop the 'fighting' in family cases and start 'helping' instead."

Details of Petition:

"When people talk about court costs what they are really talking about is the cost of the legal reperesentatives. This sucks so much money in that it leaves nothing to provide assistance to the parties in family cases. It is possible for example to get public funding for assessments but there is nothing for treatment. What in effect is happening is that the court can clearly see what the problem is but there is no money to help with solutions.If only a small proportion of what goes into the funding of legal representation were diverted into therpeutic approaches then this is likely to have a beneficial effect on the whole process.There has been some progress in Mediation to try to prevent cases coming to court or being settled without the need of a full court case but there has not been the same focus on dealing with those families that do have significant problems that require some professional assistance to 'get better". The lack of funding reduces the number of those available to do such work so it is both hard to find a suitable therapist and to pay for the therapy. This results in children being left in potentially, emotionally damaging situations."

Read the petition
Petitions home page
Read the Government's responseThe Government supports the most practical use of counselling and mediation services. We believe that the court is not always the best forum for resolving the majority of disputes about the arrangements for children following divorce or separation. In many cases, these disputes could be resolved without recourse to the courts through means of alternative dispute resolution services, where this is safe for those involved. The Government actively encourages the use of mediation in appropriate cases and is anxious to ensure that everyone involved in family proceedings, whether publicly funded or not, is aware of the benefits of mediation. The Legal Services Commission estimates that approximately 65% of all publicly funded cases result in a full or partial agreement.

For cases that do reach court, the Government has legislated to make provision in the Children and Adoption Act 2006 for the courts to direct parties to attend a 'contact activity'. Contact activities are intended to help address some of the underlying problems between the parties that can often act as barriers to making arrangements that work for both them and their children. The Government intends that these activities should include directing parents to attend an information meeting to consider the benefits of mediation in proceedings involving disputes about the arrangements for children. The Government believes that if mediation can work, even at this late stage, then that is preferable to a contested court hearing. Other types of contact activity may include more therapeutic forms of assistance such as parenting classes or counselling. We will shortly announce a timetable for implementing these and other provisions in the Children and Adoption Act 2006.

In the majority of cases that reach court, and where there are no safety issues, the parties will be offered in-court conciliation at the first hearing. This is different from mediation but aims to facilitate an agreement between the parties which can then be approved by the court. The aim is to avoid a contested hearing where the court is asked to decide the arrangements.

In regard to therapy, the Government notes that facilities are available for providing this but feels that its cost is not for the limited legal aid budget. There are many competing priorities for funding and the limited resources available have to be targeted. The underlying principal behind the current financial test is to target resources at the neediest members of the community in the most effective way.

The Government is working to improve the whole system for childcare proceedings through the implementation of the recommendations of The Review of the Child Care Proceedings System in England & Wales.

On 21 June 2007 the then Department for Education & Schools (now Department for Children, Schools & Families) published a consultation on revised guidance to local authorities considering bringing care proceedings, which closed on 28 September 2007. The Children Act 1989 Guidance and Regulations Volume 1 Court Orders places increased emphasis on pre-proceedings preparation of cases by local authorities to ensure that all the necessary steps have been completed before court proceedings are issued. It makes explicit the expectation that a core assessment is an essential precursor to the making of any section 31 applications for a care or supervision order by a local authority.

The Legal Services Commission carried out a consultation between 1 March and 24 May 2007 on removing the cost of Residential Assessments from the scope of civil legal aid. The legal aid budget is a finite resource and, as such, cannot continue to fund services that do not fall within a strict definition of legal advice or services.

In accordance with the required Parliamentary procedures, the Funding Code changes were debated and approved by both the House of Commons and the House of Lords on the 18 and 25 July 2007 respectively. From 1 October 2007 the cost of residential assessments (including pre-assessments or viability assessments, whether residential or not, undertaken to consider whether a full residential assessment is appropriate) were removed from the scope of legal aid funding. The only exception is community or home based assessments, the costs of which will still be claimable from legal aid. Many practitioners, including the Law Society and the Legal Aid Practitioners' Group, supported this change.