Family law reform: the impact on clients

Family analysis: Grant Howell, partner in the family law team at Charles Russell, discusses how the recent reforms have affected his practice.

What are your views on the quantity and pace of recent reforms?

It has been a lot to take on in a short time. That in itself is not a problem. Given the nature of the system, the key issue is whether the reforms make the system better both in principle and in practice.

What are your experiences from the front line?

The court system continues to struggle to deliver the efficient service clients are entitled to expect. This is in no way a criticism of those who are involved in trying to make it work. On the contrary, they are having to contend with what appear to be ever-reducing resources and an influx of litigants without the benefit of legal representation. However, waiting weeks for a decree absolute when it used to be days, or months for a financial consent order when it used to be weeks merely serves to underline the problems that are occurring.

Against this background, the need for reform is clear. It can though, for example, be difficult to predict the approach an individual judge will take as all are in new territory under the reforms to an extent. Personally, greater certainty which all had to follow would be preferred. However, I can appreciate the advantage of discretion and have seen with interest the experience in civil litigation where there has recently been a softening of the approach on costs under Mitchell due to suggested injustices where too strict a regime was applied to make deadlines real (Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 2 All ER 430). There is a happy medium which needs to be found, difficult as that is to do.

Practitioners are well aware there have been significant changes but may not fully recognise how wide-ranging they are when it comes to the details of running a case. There is no alternative but to 'go back to basics' and look up the procedure until it becomes second nature over time.

How successful have the reforms been in achieving their objective?

It's too early to say. For example, attempts to shorten the timetable for financial remedy applications await full implementation of the new children process to free up the necessary time. Also, accelerated by the withdrawal of legal aid, the huge increase in litigants in person is putting the system under massive pressure. For the reforms to work, the more practitioners involved to implement them properly the better. In practice though, judges are having to spend time they do not have seeking to establish the case being made, the response to that case and having to explain to unqualified people the law let alone the new procedure. This is the most difficult of situations in which to achieve the objective of the reforms.

What can be said though is that there is no uniformity and consistency of approach. The discretion given to courts is wide and different courts, or indeed different judges in those courts, apply it in different ways as to the process. It will be interesting to see if this alters as the changes fully bed in. It needs to, as otherwise time and expense is wasted by uncertainty as to what is required.

What has all this meant for clients?

In the short term, it has meant further uncertainty in what is an uncertain landscape in any event. The inability of the practitioner to predict how the changes will work in practice compounds the lack of certainty as to outcome given the nature of the law. This will improve, however, but for it to do so the more that can be done to ensure that there is a more uniform approach the better.

It is also now vital that a client is fully advised as to all the alternative means of resolving their family dispute. A practitioner needs to be more flexible and not slavishly follow the same old tried and tested process in every case. At the outset, it is even more important than before that questions need to be asked such as: 'Would mediation be appropriate?' Or, if not: 'Is this a case for arbitration?' The court system is under such pressure that any client must be made fully aware of the alternative approaches to avoid having to experience the issues that arise in any court proceedings.

What are your thoughts on the future shape and pace of reform?

It is important to recognise that the court needs to not only take account of the other available means of the resolution of family disputes (ie arbitration, mediation and collaborative law), but actively seek to engage them. There is more need for a directional approach both in the procedure itself and how it is applied.

What other challenges are family lawyers facing at the moment?

What challenges are they not facing may be the more appropriate question. To name but three:

o           getting clients when faced with increasing competition from non-family lawyers (including of course the clients themselves)

o           keeping those clients, and

o           being appropriately remunerated

Do recent and current reforms indicate any emerging trends?

Yes, the growing emphasis on non-court dispute resolution and the attempt to streamline the process.

What are your predictions for future developments?

Increasing resolution of family disputes other than by the court and a more inquisitorial approach. To prepare, family lawyers should educate themselves as to the alternatives, actively promote them and be flexible. They have key skills and need to recognise those skills may just need to be applied in a different way in the future. However, the need for them will not go away, which is the positive to take for the future.

Grant Howell has a busy domestic and international caseload including heading up the Middle East family law practice. He is a Fellow of the International Academy of Matrimonial Lawyers and was managing partner of Charles Russell LLP for eight years. Grant was one of the first qualified family law arbitrators, chairs the Forum of Family Arbitrators and sits on the Advisory Committee of the Institute of Family Law Arbitrators. He is also a qualified collaborative lawyer. He was a member of Resolution's Training Committee and spent five years on the National Committee. He was also a member of the Family Justice Council's Education and Training sub-committee and is a Fellow of the Institute of Advanced Legal Studies. He sits on the Centre for Child and Family Law Reform.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.