CAFCASS (the Children and Family Court Advisory and Support Service) has recently reported a 27% increase in private law children cases between June 2012 and June 2013 and, during that period, the highest ever number of new cases was recorded in the month of May this year.
It is of no surprise to family lawyers that this increase coincided with the removal of Legal Aid for all but the most exceptional family cases in April 2013. The removal of Legal Aid has left parents, who previously could have received financial support to enable them to benefit from obtaining legal advice from experienced lawyers, ending up acting for themselves. In many cases, this has resulted in them choosing to make applications to the Court rather than using some more appropriate forms of dispute resolution. This is because they lack the knowledge as to the alternative forms of dispute resolution that are available to them.
Having received an application with reference to a child, the Court automatically sends a copy to CAFCASS so that they may undertake necessary safeguarding checks to ascertain whether this child is at risk of harm.
The Government has sought to reduce the pressure placed on the public purse by drastically reducing the availability of Legal Aid in family cases. As a result the Courts and CAFCASS are experiencing a surge in the number of cases being conducted by litigants in person (i.e. representing themselves) and this is placing a strain on the Courts and CAFCASS’s available resources.
The priority must absolutely be given to those children who are at risk of harm and, therefore, public law cases must come first. Parents who find themselves unable to agree the arrangements for their children between themselves and who decide to ask the Courts to determine those issues may therefore experience considerable delays in having their cases heard.
In the vast majority of those cases, the Court is not the most appropriate decision-maker and parents should be encouraged to exercise their parental duty and agree between themselves the arrangements for their children.
Following the breakdown of a relationship some parents find it difficult, if not impossible, to communicate effectively and whether they mean to or not, fail to acknowledge that the children may be suffering too. Research shows that children hate conflict between their parents and simply want to please them both. This is sometimes taken by each parent to mean that the children are ‘siding’ with them and their point of view. Experienced professionals are adept at recognising the need to adopt a problem-solving approach rather than allowing conflict to escalate. With the assistance of qualified family lawyers or mediators, agreements can be reached between the parents and Court proceedings avoided, even in the most difficult cases.
The benefits of achieving an agreement through discussion and negotiation far outweigh the blunt instrument that is a Court Order. Even when an Order has been made, it is for the parents to implement the arrangements dictated by the Court and this still necessitates ongoing communication between them. The sooner a working relationship can be re-established between the parents, the better for the children and the separated family as a whole.
Dawn Gore, an expert on children matters from Trethowans Solicitors comments, "It is not the breakdown of the relationship between the parents itself that is damaging to the children, but the way the parents handle that breakdown. Getting advice at an early stage will assist the parents to agree the arrangements for their children. This will assist the children come to terms with the change in their circumstances and enable the adults to retain a respectful relationship with each other for their children’s benefit."