A key indicator of a society that is not working for the individual stakeholder is that people from more economically deprived backgrounds are locked out from accessing public institutions that wealthier people enjoy access to.
This isn’t a controversial or excessive need, a vast majority of people would agree that this is the least they expect from a functioning legal system. So, the question then becomes, why are justice policy makers ignoring these guiding principles when it comes to proceedings under the Children Act 1989.
When the Legal Aid Sentencing and Punishment of Offenders Act 2012 (known as LASPO) was brought in, one of its key principles of the legislation was that they wanted to cut the cost of justice by having less people taking a route that involved court. This in itself is not something that is intrinsically evil, when working with clients, I have often felt that the welfare children at the heart of Children Act legal disputes is immeasurably better served if their parents are not embroiled in a local fight over their residence.
Given this, the rate settings of court fees mean that a mediation course followed by a consent order for parents will work out as more expensive than a single session of mediation followed by court. This strikes me as an illogical and inefficient way of setting court application rates that could be easily remedied by a very simple policy change.
Accepting and working with the government ambition that less people should be applying to court for Child Arrangements Orders, one must question why there has been no demonstrable drop in people applying to court regarding orders. This is because the introduction of mediation as a requirement with a damaging tiering of the costs of either mediation or court, means that the current system does not work in the way the legislation intended. It certainly does not work in the best interests of the child.
So, what to do?
Again, accepting and working with the premise of the LASPO argument that less people should be going to court, it falls onto policymakers to come up with a solution that does that whilst simultaneously not impeding access to justice.
The first change to do this is a positive policy of encouraging people to avoid court. The current costing of £215 for both a consent and a court order was set to deter people from applying to court in the first place. This doesn’t work as a deterrent because the costing is not high enough to act as a functional deterrent.
Although it should be said that if the aim is to deter people from applying through making it too expensive then you end up running the risk of repeating the mistakes that create an environment not dissimilar to the one seen in R (UNISON) v Lord Chancellor.
A way to change this system to make it more accessible for people is an overhaul of the costing policy. If the Ministry of Justice instigated a new policy of keeping the current fee of £215 for applying to court for a Child Arrangements Order whilst simultaneously removing the fee for parties applying for a consent order regarding child arrangements, you are providing a positive fiscal benefit for not going to court whilst not potentially pricing out lower income claimants as was seen with the employment tribunal fees.
There also needs to be the safeguard put in place to ensure that those who have legitimate reasons for not resolving disputes through mediation, are not financially penalised, for example the introduction of a merit not means system where there was an independently set threshold for a fee waiver on measured on the merits of the case. This should be complimented by extending the current EX160 thresholds to accurately reflect the burden court proceedings have fiscally.
The second policy change is price caps on mediation. If one accepts the argument that mediation within reason has the potential to allow the court system to be de-clogged, the policy of bringing in broadly compulsory mediation with specific exemptions is a perfectly meritorious policy position.
Unfortunately, the mediation aspect has been poorly implemented and does little to actually resolve disputes relating to child arrangements, rather more having the effect of merely delaying their ending up in family court.
A successful policy from the health and social care sector is care cost caps. Introduced by Norman Lamb, they were used as an effective backstop to combat the rising cost of social care for individuals and protect them from being impoverished by their own care.
I see no reason why a similar policy couldn’t be applied to family mediation. A clear proposal to ensure that people are not locked out of accessing justice would be to place the cap below the cost of applying to court. For example, we could set a limit of £200 to be spent on mediation before the costs are capped and afterwards it becomes covered by legal aid for those on lower incomes. Therefore, people who were reaching an agreement via mediation but taking time are not inadvertently pressured into applying to court by the cost of mediation.
These two changes could provide a far more effective system that would not discourage people from applying and actually provide a tangible alternative to the current court centric route. With the government response to LASPO due out by the close of 2018, there is time for the Ministry of Justice to respond positively to the consultation that was answered by a large number of law centres, clinics and charities. Furthermore, they have it within themselves to implement these fairly straightforward changes to the current court and mediation fee policy system to ensure that at people are not impeded from accessing justice by their financial position.