In a statement last week, the justice secretary, Dominic Raab, warned that parents who bring vexatious claims to the family courts will face financial penalties. The policy is part of plans currently being drawn up by the government to introduce new incentives and disincentives to “spare children the trauma of seeing their parents fight it out in court”.

The family courts at crisis point

Whilst discussing the proposals, the justice secretary emphasised that family mediation ought to be the default procedure for divorce and private children cases, to prevent couples battling it out within the family courts causing unnecessary delays within the court system. The ultimate aim of the government’s plan is reportedly to prevent up to 50% of family law cases ever reaching court. The government’s plans are based upon the Civil Justice Council’s report earlier this year which concluded that alternative dispute resolution (ADR) could be made compulsory.

It cannot be disputed that the family courts are struggling to cope with demand. This has been a problem for some time and there is no sign of the situation improving in the near future. According to the government’s latest figures, there was a total of 66,357 new cases that commenced in the family courts during the period April-June 2021. That was a 14% increase than in the same time period in 2020.

However, the Law Society has urged caution in response to the Civil Justice Council’s conclusion that compulsory ADR may be the answer to resolving the problems with the court system. In fact, the Law Society is questioning whether such a policy shift would even be lawful.

The rise and fall of mediation in family cases

What is clear, is that the system should be making better use of ADR and mediation so that people do  not need to rely solely on the family courts to resolve their problems. In the past ten years, mediation referrals within family law matters have steadily declined. According to Ministry of Justice statistics, during 2011-12, family mediation resulted in an approximate average of 10,000 agreements. During 2020-21, the approximate average was less than 5,000 agreements.

In an attempt to address the problem, the Ministry of Justice introduced a voucher scheme worth £1m in March 2021, whereby families could apply for £500 vouchers towards mediation costs. The scheme has been considered a success, so much so that the government allocated a further £800,000 in August 2021. Sir Andrew McFarlane, president of the Family Division, has since revealed that roughly 77% of cases under the scheme have been successfully resolved outside of the courts.

With this in mind, it remains to be seen whether the justice secretary’s plans to impose financial penalties for vexatious claims will be the solution to what is needed to ease the crisis. The reception to the proposals within the family law sector has been lukewarm at best. The general consensus being that fining and punishing parents for making inappropriate applications will do little to address the underlying problems. Instead, it is thought that the family justice system is in need of a substantial change of culture where families and individuals have better access to professional advice to guide them through the process.

The Shoosmiths approach

At Shoosmiths, we recognise that court proceedings are likely to be much more stressful and costly than the potential alternatives, such as mediation or round table meetings. Whilst there are instances where court applications are necessary, we advise that court proceedings should only be a last resort. We always assist our clients to explore the potential available options so as to resolve the dispute in the most effective manner possible.