Warring couples face penalties for clogging up family courts.

Warring couples face penalties for clogging up family courts - article in today's Sunday Times.

Parents who bring vexatious claims to the family courts will face financial penalties under plans being drawn up by the government.

Dominic Raab, the justice secretary, wants mediation to be the default process for divorce cases to stop warring couples clogging up the family courts system.

Raab, who is also deputy prime minister, is keen to introduce new “incentives and disincentives” to “spare children the trauma of seeing their parents fight it out in court”.

He believes making mediation the default would free up judges to deal with serious cases, such as those concerning domestic abuse. One option understood to be under consideration is measures to make it easier to award substantial legal costs against the parent thought to be abusing the court system for their own interests.

A source close to the justice secretary said: “Of the 50 per cent of family cases that don’t involve domestic abuse, he [Raab] is clear they should be resolvable without going to court and he has commissioned proposals as to how he can make that happen.”

Raab is supportive of the £1 million government-backed voucher scheme, which offers couples £500 towards the costs of mediation. But he wants to see his department go “much further to spare children the trauma of having their parents fight it out in court”.

The source added: “He is keen to make mediation the default. He is looking at incentives and disincentives to encourage parents to take that route.

“The exception is of course those cases involving domestic abuse or safeguarding issues. He thinks those should be kept under a judge’s purview.”

A senior Tory source with an interest in family law said too many children were being used as a “pawn in a game” between parents who have become consumed with their own personal grievances.

“The only outcome is that this bitter process becomes drawn out and creates unnecessary anxiety and uncertainty that can only damage the children".

Mediation has plummeted since public funding was removed for lawyers to represent clients in private family law cases.

The coalition government made sweeping cuts to legal aid in 2013. The year before, there were 13,609 mediations. By March this year, the annual number had almost halved to 7,695 cases.

The Ministry of Justice believed that cutting funds for family lawyers would mean more people solving their divorces and child arrangements outside court.

Instead, without lawyers pushing divorcing couples towards mediation, the number clogging up the court to fight their case without representation he soared.

Only one in five private family law cases heard in the courts now have lawyers representing both sides, according to the latest government data. In 2012, it was about two in five.

The situation presents a serious problem for judges in the family courts, where a chronic backlog has been exacerbated by Covid.

Private cases over child arrangements now take an average of six months from to conclude in court, two months longer than last year.

www.thetimes.co.uk/article/warring-coupl...ily-courts-p0z3wgnx7

Thanks for highlighting this. Apologies in advance for the long post!
I can’t help but think that this is a sticking plaster to try and fix a system which is broken. They are threatening to punish people who end up having to use a flawed system, rather than trying to fix the system! I hasten to add that I am not a legal professional but have my own (painful) experience of the process. If judges now also have to determine whether a litigant is “vexatious” that will only add to the uncertainty and take even more court time to deal with.
Also, if Dominic Raab’s intention is for the vast majority of financial remedy cases to be taken out of the court system, some other form of reference needs to be established. Currently the only final judicial determination on financial remedy is at the judge’s discretion. This is deemed appropriate because “every case is different.” Yet solicitors are faced with using case precedent to second guess what a judge will determine and advise their clients accordingly. If every case is different, how can case precedent have any real relevance, and if most financial remedy cases no longer go to court because of Raab’s “carrot and stick” approach, then how will solicitors be able to advise their clients? Case precedents will be few and far between and end up being outdated as time goes by.
The Divorce (Financial Provision) bill as originally introduced by Baroness Deech as a private member’s bill in 2017 and re-introduced (after prorogation) by Baroness Shackleton in 2019 goes some way to addressing the uncertainty surrounding financial remedy, but it does not and cannot, as a Private Member’s bill, go far enough. In any case neither bill has made progress beyond the Lords and the government and MOJ have publicly stated they do not support it. How then are couples in disagreement over financial provision expected to proceed in the future?
Perhaps what is needed is a more prescriptive approach, a sort of Financial Remedy “Red Book” (the RICS surveyors’ bible for property valuation) which offers a directive on the “back stop” position if couples cannot reach agreement. This would indeed be a complex work, no doubt also requiring a bill to be presented in parliament to see it through. But it’s not impossible and, if done comprehensively and carefully, would be no less fair than the current system. It should include more definitive parameters (some of which are already established and used in Scottish divorce law) such as (but not limited to): what constitutes a short/long marriage and the different financial approaches needed for each; the treatment of pre-marital assets, gifts and inheritances; what constitutes marital assets and in what circumstances non-marital assets become marital ones; in which circumstances the 50:50 division of marital assets should apply; in which circumstances non-marital assets need to be taken into consideration; how assets should be valued in the event of a disagreement over value; definition of housing needs where no children are involved; where children are involved and there are insufficient assets to provide equal housing for both parties, a workable formula for determining the split to allow one parent to house the children adequately. There are probably hundreds more scenarios and complexities which need to be spelt out and no doubt such a document would run to several hundred pages (The PAG report on pensions in divorce is 176 pages and that is just one aspect of financial remedy, although that too stops short of giving definitive parameters). I’m not saying it would be an easy task but if done correctly it would become an effective tool for solicitors and mediators to work with. Of course, parties should be entitled to agree a more generous offer to the other side than the “Red Book” as well as being entitled to agree to offset assets. If one party still wanted to go to court, having failed to reach agreement and failed to agree to the “backstop” set of rules, then if the judge determined that the “Red Book” rules were fair, or awarded a higher settlement to the other party, then penalties could apply to the applicant. Obvious exceptions where abuse, violent crime, legal aid etc are involved but Dominic Raab has already said these sorts of cases should still have priority at court, as should any regarding child custody etc.
I totally agree that there has to be an alternative solution for the vast majority of Financial Remedy cases which currently end up in court but trying to force people to use Mediation without giving them a set of clear parameters to work with seems doomed to fail. Every case that goes to court (with the exception of abusive ones) has to use Mediation first. If it was working effectively then all these cases which “clog” up the system would not need to go to court…………
Would be really interested to hear other views on this topic, especially any legal professionals out there……………

My reading of this was that this would be for child cases, where the matter bought before the courts was not necessarily a legal issue, ie disagreement over which junction of the A27 to use for handovers. See this article - www.lawgazette.co.uk/news/judge-tells-la...ions/5105790.article