Family Justice Research
Big changes are in progress in the family justice system. Researchers, both within government and outside, are engaged in a number of research projects designed to examine how the family justice system is working. Indeed, a number of recommendations in the Family Justice Review related to the need to better share relevant research and good practice throughout the family justice system. The government accepted these recommendations and agreed to work with the Family Justice Board to help provide social research evidence to family justice professionals and wider stakeholders.
The Family Justice Research and Analysis team in Ministry of Justice Analytical Services are supporting this through their Family Justice Research Bulletin. The 5th volume of the Bulletin was published in January 2015. The 4th is also available on-line but numbers 1-3 are not. It is planned that further bulletins will be published roughly every six months.
Given the controversies that surround the operation of the family justice system, the undertaking and publication of high quality empirical research is obviously necessary to ensure that the system is working as intented.
One of the principal findings in the present edition is that public knowledge of what is happening to the family justice system is very sketchy; and that government hopes for more use of mediation are still thwarted by a lack of willingness of parties to participate in mediation. There also seems to be a lack of understanding that while legal aid for family matters has been cut back, it is still available for mediation.
Those interested in the research discussed in the bulletin can find full details at https://www.gov.uk/government/publications/family-justice-research-bulletin-5-january-2015
Bulletin 4 is at https://www.gov.uk/government/publications/family-justice-research-bulletin-4-mar-2014
Civil legal aid – review of the ‘mandatory gateway’
Legal practitioners have long argued that the only way to deliver proper legal advice and assistance is by face to face interviews with clients. With the development of new technologies, this view has come under increasing attack. It has been argued that remote contact via phone or email can often be just as effective and will often be more economical. An important research report on the issue by Alan Paterson and Roger Smith was published in 2014: see http://www.nuffieldfoundation.org/face-face-legal-services-and-their-alternatives-global-lessons
One of the fundamental changes made to the legal aid scheme as the result of the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 is that, from April 1, 2013, in a number of matters that are still within the scope of the legal aid scheme, potential users of the legal aid scheme can only access the civil legal aid scheme through a ‘gateway’. Clients cannot get assistance by going direct to, for example, a solicitor.
(There are three exceptions, for those who are:
- in detention (including prison, a detention centre, or secure hospital);
- children (defined as being under 18); or,
- where the matter for which they need assistance is one where the user has previously been assessed as requiring face-to-face provision, has accessed face-to-face within the last twelve months, and is seeking further help to resolve linked problems from the same face-to-face provider.)
The Gateway is delivered by the Civil Legal Advice (‘CLA’) advice helpline for England and Wales, paid for by legal aid. It provides, for people who qualify for civil legal aid, specialist legal advice, primarily by telephone, online, and by post, in relation to
- debt,
- discrimination,
- Special Educational Needs,
- housing, and
- family issues.
It is available Monday to Friday 9am to 8pm and Saturday 9am to 12.30pm. Outside these times users can leave a message and CLA will call back within one working day.
Clients who qualify for legal aid in the first 3 Gateway categories listed above must usually receive any advice remotely. Clients who qualify in the other 2 categories of law have a choice about whether to receive any advice remotely or via a face-to-face provider.
The gateway provides a two-tier system. At tier one, the operator will determine whether the matter is within the scope of legal aid and will also determine the financial eligibility of the client to legal aid. If both these tests are satisfied, the client is referred to a specialist second tier advice provider. In cases that fall outside the scope, operators are training to inform people about possible alternative advice providers, e.g. in the charitable advice or third sectors.
Where a case is found to be within the scope of CLA, the client is referred to a second tier provider – a specialist who will normally provide advice remotely without a face-to-face meeting with the client.
The one exception to this is that where a client needs legal representation, arrangements will be made for a face-to-face meeting.
Because the compulsory element of the scheme was new, the Government undertook to review how the scheme was working within the first two years of its operation. In December 2014, it published the outcome of this review (and four separate research reports that were commissioned by the Government).
The broad conclusion was that, while there were matters that needed tweaking, the basic operation of the gateway was working satisfactorily,
My prediction is that, as policy evolves, there will be more use of these modes of accessing legal advice and assistance.
The Government’s view is available at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-review. Annex A gives more detail about the issues within scope. Annex B gives details about the agencies currently providing the gateway service.
The related research reports are at https://www.gov.uk/government/publications/civil-legal-advice-mandatory-gateway-research-findings
Court fees: further changes
In June 2014, new fees for taking civil proceedings were introduced, designed to bring in additional revenue to the Court Service/Ministry of Justice.
In January 2015, a further paper was published by the Ministry of Justice which announced further decisions relating to court fees, and which raised for consultation yet other suggestions for increasing court fees. These proposals are set against a background where the income which the initial changes had hoped to generate has not been realised.
The principal change is that the fee to issue proceedings for the recovery of money is raised to 5% of the value of the claim for all claims over £10,000, up to a maximum of £10,000. The fees for claims of less than £10,000, which represent over 90% of all money claims, will remain at their current levels. Discounts of 10% will apply to these fees where the claim is initiated electronically using the Secure Data Transfer facility or Money Claims Online.
The Government has decided not to implement the proposed increase to the fee for a divorce, or either of the options for charging higher fees for commercial proceedings.
The Government is now consulting on proposals
- to raise the fee for a possession claim by £75.
- to increase the fee for a general application in civil proceedings from £50 to £100 for an application without notice or by consent; and from£155 to £255 for an application on notice which is contested.
It is proposed that the latter proposal should be subject to an exemption for:
- applications to vary or extend an injunction for protection from harassment or violence;
- applications for a payment to be made from funds held in court; and
- applications made in proceedings brought under the Insolvency Act 1986.
The consultation period is only 6 weeks. Final decisions will be announced in due course.
For full details see https://www.gov.uk/government/publications/enhanced-court-fees-the-government-response-to-part-2-of-the-consultation-on-reform-of-court-fees
New financial penalties for claims management companies
At the end of December 2014, the Government introduced a new scheme for the imposition of financial penalties on claims management companies (CMC) that fail to adhere to the regulations that control this sector of the legal services market. Made under provisions in the Financial Services (Banking Reform) Act 2013, from 29 December 2014, the imposition of a financial penalty becomes an additional available enforcement sanction for use against non-compliant authorised persons under the following circumstances:
• As a consequence of a failure to comply with the Conduct of Authorised Persons Rules
• As a consequence of a failure to comply with requirements regarding the provision of
information or documents to the Regulator
• As a consequence of a failure to comply with a requirement to take out a policy of
professional indemnity insurance
• As a result of the Regulator being obstructed in its execution of a warrant to enter and search
premises for the purposes of investigating a complaint about the activities of a regulated
CMC, or assessing the regulated CMC’s compliance with the conditions of its authorisation
• As a result of the Regulator being obstructed from attempting to take possession of, or copies
of written or electronic records found when executing a warrant to enter and search premises.
It should be noted that these penalties are not imposed by a court but by the regulator of CMCs. The guidance states:
“In practice under the CMR Unit’s revised Enforcement Policy, a financial penalty is likely to be
considered where:
– Breaches have continued despite previous compliance advice or warnings
– Detriment caused to consumers or third parties in general can be clearly monetised
– Any financial gain or loss avoided by the business can be monetised
– The business has sufficient financial means to pay a penalty
– No previous formal enforcement action has been imposed
– Action to vary, suspend or cancel the authorisation of a business would be disproportionate
under the circumstances
This list is non-exhaustive but sets out some relevant indicators that are likely to be considered when
deciding whether to initiate the penalty calculation process or move to consider the other formal
enforcement sanctions.”
Full details of the scheme are set out at https://www.gov.uk//government/publications/claims-management-companies-financial-penalties-guidance
In addition it should be noted that from January 2015, the Legal Ombudsman will have power to deal with complaints about bad practice by CMCs.
Work of the Equality and Human Rights Commission: podcast with Nony Ardill
The Equality and Human Rights Commission is the body given the statutory mandate to challenge discrimination, and to protect and promote human rights. As it states on its website:
“We live in a country with a long history of upholding people’s rights, valuing diversity and challenging intolerance. The EHRC seeks to maintain and strengthen this heritage while identifying and tackling areas where there is still unfair discrimination or where human rights are not being respected.”
To get a clearer idea about how the Commission goes about its work, I have been talking to Nony Ardill, a Senior Lawyer with the Commission. She provides a fascinating account of the ways in which the Commission works with other agencies to fulfill its (very challenging) mandate.
To hear the podcast, go to http://global.oup.com/uk/orc/law/els/partington14_15/student/podcasts/NonyArdill.mp3
To read more about the work of the Commission, go to http://www.equalityhumanrights.com/
Criminal justice – simplifying out of court disposals
The Government has recently announced that it is launching a new pilot scheme that will significantly change the way in which out of court disposals for those accused of criminal activity are dealt with.
It is already the case that the use of out-of-court disposals overall has decreased in recent years. Thus in the 12 months to the end of March 2014, there were 391,171 given, comprising 235,323 cautions, 77,933 cannabis warnings and 77,915 penalty notices for disorder. This compares to 522,133 out-of-court disposals given in the 12 months to the end of March 2010.
The new scheme – which does not affect penalty notices for disorder – will comprise:
- a new statutory community resolution – aimed at first-time offenders. This will be used to resolve minor offences through an agreement with the offender. It will empower victims, giving them a say in how they want the offender to be dealt with. It could see an offender offering a verbal or written apology to the victim, making reparation (which can include fixing material damages) or paying financial compensation;
- a suspended prosecution – designed to tackle more serious offending. This will allow the police to attach 1 or more conditions to the disposal which must be reparative, rehabilitative and/or punitive in nature. It could see the offender receiving a punitive fine or attending a course designed to rehabilitate him or her and reduce the likelihood of re-offending
Under this new two-tier framework, offenders would have to take steps to comply with the disposal, rather than just accepting a warning, which is often the case with the current system. If they fail to comply, they will risk being prosecuted for the original offence.
The pilot scheme will operate in three polic areas for 12 months and will be assessed before a decision is taken on whether to roll out the framework nationally.
For further information, see https://www.gov.uk/government/news/putting-an-end-to-soft-option-cautions
Mediation in Family Disputes
Mediation is the Government’s preferred option for resolving family disputes. The Government has recently announced that, from 3 November 2014, the first mediation meeting will be free to both parties, so long as at least one of the parties to the dispute is in receipt of legal aid.
In addition, from January 1 2015 there will be a third stage in the government’s work to improve mediation and encourage separating couples to use it to resolve disputes. From the beginning of the New Year, the Family Mediation Council (FMC) is introducing a compulsory accreditation scheme and new professional standards which all mediators must work toward. All mediators and those working towards becoming a family mediator will be required to be registered with the FMC. The Ministry of Justice (MOJ) is funding the preparation work and costs of implementing the new standards.
These announcements follow recommendations from the Family Mediation Taskforce.
See https://www.gov.uk/government/news/free-mediation-for-more-separating-couples-begins
The report of the Family Mediation Taskforce report, published in June 2014, can be found by googling Family Mediation Taskforce.
Experts in family law cases: new practice direction
In May 2013, the Government launched a consultation on the standards that experts in family cases should have. The standards had been drawn up by the Family Justice Council. The judiciary have recently announced that these standards are now operational.
The standards include making sure that the expert:
- has knowledge appropriate to the court case,
- has been active in the area of work or practice and has sufficient experience of the issues relevant to the case,
- is either regulated or accredited to a registered body where this is appropriate,
- has relevant qualifications and has received appropriate training, and
- complies with safeguarding requirements.
The standards were developed in partnership with the Family Justice Council.
For further details, see http://www.judiciary.gov.uk/publications/new-national-standards-for-family-court-experts/
Considering the case for a written constitution
In July 2014, the Political and Constitutional Reform Committee of the House of Commons launched an inquiry into the question of whether there is a need for a new Magna Carta. The inquiry follows from research undertaken at King’s College London which lays out three different models – including one fully fleshed out, complete constitution – and sets out some of the arguments for and against codifying the constitution in this way. The following summary is from the Committee’s website.
Arguments for
The King’s research points to the fact that the UK has a “sprawling mass” of common law, Acts of Parliament, and European treaty obligations, and a number of important but uncertain and unwritten “conventions” that govern administration, but the full picture is unclear and uncertain to electors in our democracy. They point to concerns about an “elective dictatorship”, and argue that it has “become too easy for governments to implement political and constitutional reforms to suit their own political convenience”. A written constitution would entrench requirements for popular and parliamentary consent. The present unwritten constitution is “an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process.”
Arguments against
Conversely, the case against a written constitution is that it is unnecessary, undesirable and un-British. The UK’s unwritten constitution is evolutionary and flexible in nature, enabling practical problems to be resolved as they arise and individual reforms made. The research points to concerns that a written constitution would create more litigation in the courts and politicise the judiciary, requiring them to pass judgement on the constitutionality of government legislation (which currently happens only in some contexts, such as compatibility with the Human Rights Act), when the final word on legal matters should lie with elected politicians in Parliament, not unelected judges. There is the simple argument that there are so many practical problems in preparing and enacting a written constitution, there is little point in even considering it. There is no real popular support or demand and, especially given the massive amount of time and destabilising effect such a reform would entail, it is a very low priority even for those who support the idea.
The Committee is currently taking evidence on the issue and will publish a report early in 2015.
For further detail go to http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/news/report-a-new-magna-carta/
Creation of the Planning Court
As part of the changes to Judicial Review being made by Government, planning cases now go to the Planning Court.
From April 2014, the Planning Court deals with all judicial reviews and statutory challenges involving planning matters, including appeals and applications relating to enforcement decisions, planning permission, compulsory purchase orders and highways and other rights of way. It forms part of the Administrative Court but is distinct from it. Cases can start at the following locations:
- The Royal Courts of Justice
- Birmingham Civil Justice Centre
- Cardiff Civil Justice Centre
- Leeds Combined Court
- Manchester Civil Justice Centre
Planning Court cases are subject to tighter time limits than Administrative Court cases:
- applications for permission to apply for judicial review are to be determined within three weeks of the expiry of the time limit for filing of the acknowledgment of service;
- oral renewals of applications for permission to apply for judicial review are to be heard within one month of receipt of request for renewal;
- applications for permission under section 289 of the Town and Country Planning Act 1990 are to be determined within one month of issue;
- substantive statutory applications, including applications under section 288 of the Town and Country Planning Act 1990, are to be heard within six months of issue; and
- judicial reviews are to be heard within ten weeks of the expiry of the period for the submission of detailed grounds by the defendant or any other party.
Specialist judges, with planning expertise, sit in the Planning Court.
It is hoped that these changes will ensure that these changes will reduce the delay that can sometimes effect planning decisions.
For further detail see https://www.justice.gov.uk/courts/rcj-rolls-building/administrative-court/the-planning-court
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 