Government to introduce compulsory mediation of divorce disputes
Family Justice Review to report in early 2011
The Daily Telegraph reports that a government review is to recommend the introduction of a compulsory mediation stage before any financial or custodial dispute is heard in court.
David Norgrove, the chair of the Family Justice Review panel, is quoted as saying that a new mediation stage could reduce the legal aid budget by £100 million.
The plan, which it is said will be published early next year, will also introduce briefer and simpler hearings for cases that cannot be resolved by mediation.
The Daily Telegraph article can be reviewed as follows:
Lawyers to be kept out of divorce battles
Lawyers will be kept out of thousands of family dispute cases every year in a shake-up of divorce laws.
Published: 7:30AM BST 18 Oct 2010
First ever National Pro Bono Centre opens
Centre offers access to family law services
The first ever National Pro Bono Centre opens formally on Tuesday 19 October at its new premises at 48 Chancery Lane, followed by a celebration of pro bono at the Royal Courts of Justice. Guests will include the Rt Hon Dominic Grieve QC MP, the Attorney General; Jonathan Djanogly MP, Parliamentary Under Secretary of State at the Ministry of Justice; and the Rt Hon The Lord Judge, the Lord Chief Justice.
The NPBC brings together national legal charities the Bar Pro Bono Unit, LawWorks (the Solicitors' Pro Bono Group) and the ILEX Pro Bono Forum. "Hot desk" facilities will allow the development of new initiatives.
The coming together of the three charities, which work with Citizens Advice Bureaux, Law Centres and frontline agencies across England & Wales, aims to provide a more joined-up service to members of the public and to community groups in need of legal help but who cannot access legal aid and who cannot afford to pay legal fees. Whilst not a replacement for legal aid, the pro bono services offered by the charities enables access to a wide range of legal professionals across the broadest spread of practice areas and across the whole of England & Wales.
For individuals, this means access to essential legal services such as family law, as well as housing, employment and immigration law.
The centre website can be accessed via http://www.nationalprobonocentre.org.uk/.
Resolution warns that cost savings threaten family justice
David Allison urges government to resist ‘quick fix solutions’
Resolution has called for a return to evidence based policymaking on family law and warned against simplistic solutions to the complexities of family breakdown. These calls were made in response to an interview in The Times with David Norgrove, chair of the government's Family Justice Review, which reports him as saying that keeping family disputes out of court would create huge cost savings and suggests that compulsory family mediation could be a way forward.
David Allison, Chair of Resolution, commented:
"90 percent of family cases are already settled out of court, often with the help of a family lawyer, so the suggestion that the role of the lawyer needs to be reduced flies in the face of the evidence. 80 percent of people faced with family breakdown turn first to a family lawyer.
"Our members recognise that each family needs a process that is right for them – that can be mediation, but might also be collaborative law, parent information and in some cases court.
"We are deeply concerned that in its hurry to bring about cost-saving reforms, the Government is going to narrow the gateway to court to such an extent that those families who need it cannot access it."
David Allison also warned that the Government appeared to be rushing ahead with its support for mediation as the only solution to the problems of the family justice system without doing the groundwork.
"How many suitably qualified and regulated family mediators are there in the country? Currently anybody can set up as a mediator. We understand that there may be fewer than 800 mediators who belong to a self regulating body and are concerned that there may not be enough mediators out there to meet demand if it is made compulsory in family cases, or if a compulsory assessment is required before going to court."
David Allison concluded: "We urge the government to properly investigate all alternatives, including collaborative law, arbitration and early parent information, before opting for a quick fix solution to the problems facing the family justice system."
Law Society President Linda Lee responded to the Government announcement of cuts of up to £350m in the legal aid budget.
"While the figure of £350m is less than some had feared, losing this amount of money from the system will inevitably prove to be a significant blow to legal service provision and access to justice. A creaking system is going to be less able to deliver the needs of the vulnerable in society.
"It is a basic feature of a democratic society which supports the rule of law that vulnerable people, whether they are children, or have mental health or housing problems, are accused of crimes or have suffered loss, are able to have access to legal advice and representation to secure justice.
"The legal aid budget does not have to be cut by restricting its availability. The best approach is to tackle the need for legal aid such as simplifying the law, addressing poor decision making by public bodies, and by reforming inefficient Court processes - the real causes of the rising expenditure."
R (A Child)  EWCA Civ 1137
Court of Appeal refused Father’s appeal against an order granting the Mother leave to remove their 5 year old son permanently to Australia.
The Father appealed to the Court of Appeal against an order granting the Mother's application for leave to remove the child of the family permanently to Australia. The appeal was dismissed.
The Father appealed the Circuit Judge's decision on the basis that he had been plainly wrong to have proceeded without the benefit of a Cafcass report. The Court of Appeal held that while such reports are quite often prepared they are not invariably prepared and in this case was of limited use. In particular, observation of contact would not assist the court because it was not disputed by the Mother that in principle the child had a good relationship with the Father and that at age 5, the child was too young to express wishes and feelings of any real significance.
The further ground of appeal that the child would lose the important relationship he had with his half-siblings was held not to hold any weight because those half-siblings would soon be adults and probably be living away from home.
The Father further sought to bolster his appeal with allegations that the Mother's mental health had not been properly investigated and that the Mother's motivation was to curtail the Father's relationship with the child by the move to Australia. The Court of Appeal held there was material before the judge at first instance to allow him to arrive at the conclusion that this was not the Mother's motivation and that the mental health allegation was not made out because the Mother had assumed full care of the child with no complaint from the Father.
One of the Father's major grounds in his appeal was held to be misconceived: that the judge did not make an actual order for contact. While there may be a contact attachment to an order, the English court in granting leave is surrendering its control over the child to a foreign court and a contact order is an order taking effect until further order of the English court.
While the Father pursued in his appeal the failure of the Mother to specifically address the effect on her of a refusal of her application, the judge did address the point in his judgment and the Court of Appeal noted that it is easy for an applicant to say how devastated they will be if the application is refused, the court can still ascertain the effect of the refusal by way of inference from the surrounding circumstances.
Summary by Richard Tambling, barrister, 1 Garden Court