“Legal advice pilot” part of early dispute resolution consultation response

The government have published its response to the Private Family Law Early Resolution Consultation launched in March 2023. In it, the government have described how families will benefit from “early legal advice, greater use of mediation, and the continued rollout of an innovative pilot which better supports domestic abuse victims and children.”

The much anticipated response follows the launch of the consultation which put the prospect of mandatory mediation firmly on the agenda. It was also suggested at the time that new powers for judges to order parents to make a reasonable attempt to mediate with possible financial penalties if they act unreasonably could be introduced.

The response falls short of introducing mandatory mediation, a relief to many who questioned the practicalities of mandation, but proposes to bolster the role of mediators, introduce a pilot service to provide legal advice earlier in the conflict, and extend the current pathfinder work being done in North Wales and Dorset aimed at reducing conflict, to Birmingham and south east Wales, ahead of a national roll out.

The response acknowledges the concerns of practitioners around the use of mandatory mediation in the context of domestic abuse, where “the proposed exemptions would not be enough to adequately protect survivors of domestic abuse from being required to attend mediation when it is not suitable or safe for them.” It also says that mediation is not the only form of out of court dispute resolution. No changes to the law on mandating mediation is therefore in the response. Instead, say the government, it will focus on

• providing earlier targeted information before issues escalate;
• providing new dedicated support for pre-court resolution;
• reforming the private family law process to make it less adversarial with a greater emphasis on the voice of the child, and:
• increased support for parties who need it.
• Improved domestic abuse screening and training for mediators, working with the Family Mediation Council

It also points to the success of the Mediation Voucher Scheme which it says will have had £23.6m funding by March 2025, as evidence that efforts to invest in mediation is working. The scheme has helped over 24,000 families avoid court by since its launch in March 2021. Analysis of 7000 users shows 69% reached whole or partial agreement without resorting to court and 51% of participants would not have tried mediation without financial support.

The proposed early advice pilot would introduce publicly funded legal advice at an earlier stage, something the Law Society’s response to the consultation suggested had been neglected since LASPO in 2012 which removed most early legal advice from scope of legal aid. The response acknowledged that although the question was not directly asked in the consultation, many responses identified the barrier that free or publicly funded legal advice was to early dispute resolution. The pilot would be launched in “specific regions” by Summer 2024.

More than 60,000 private law children and contested finance cases went through the family courts in 2022. Focusing on the impact of proceedings specifically on children Lord Chancellor and Justice Secretary, Alex Chalk KC, said:

“There is no one-size-fits-all approach for separating families, which is why we’re ensuring people have access to early legal advice and mediation to resolve disputes as early as possible. These reforms will help spare thousands of children the long-term harm of lengthy, combative courtroom conflict.

Justice Minister Lord Bellamy said:

“These reforms are about helping those who need it the most. By elevating the voice of the child and reducing strife in a court room, we will give our children the best chance of growing up to becoming well-adjusted adults.”

Chief Executive of Cafcass Jacky Tiotto, said:

One of Cafcass’ main strategic priorities is to improve the experiences of children in private law proceedings. There is so much more to be done to turn up the volume of their voices and to make them central to the business of the proceedings. We therefore welcome the heightened focus on children within the government’s proposals announced today. We are already working alongside our partners in the family justice system to create a Pathfinder in Birmingham and we support the government’s intention to encourage more families to find alternative resolutions and to prioritise what is in their children’s best interests without the need for lengthy family court proceedings.

Domestic Abuse Commissioner Nicole Jacobs said:

The Family Court is critical in keeping child and adult victims safe from abuse. I am delighted that the Pathfinder Court pilots will be extended to two further sites, with a view to national roll-out. These courts take a child-centred approach, supporting victims and embedding an understanding of domestic abuse throughout the proceedings, which were key recommendations I made in my 2023 Family Court report.

I welcome the opportunity to continue working with the Ministry of Justice to ensure that early resolution measures – such as provision of early legal advice, and reforming the family justice system to be less adversarial and more child-centric – will further improve the Family Court response to domestic abuse and protect child and adult victims from further harm.

The response can be read in full here.