In the first of our debates, Rebecca Harling and Karen Dovaston share their views on the Ministry of Justice (MoJ)’s proposals for enhanced fees for divorce proceedings.
For fee increases
Rebecca Harling is a solicitor in the family department at Thomas Eggar LLP.
As a family solicitor I am well aware of the recent furore over the MoJ’s planned rise in court fees, particularly the plans to increase the fee to issue a divorce petition by one third, from £410 to £550. There are also proposals to increase fees in possession claims and general applications within civil proceedings.
The government asserts that the aim of enhanced fees is:
to protect access to justice by ensuring that the courts and tribunals are adequately resourced; and
to reduce the overall taxpayer subsidy for HMCTS.
In the wake of huge public spending cuts to the justice system, the court system, though starting to improve in light of recent reforms, is still inefficient, slow and very frustrating for users.
Further advances are desperately needed. It is essential that the courts are properly funded if we are to see the development of a more efficient, modernised court service.
The court system currently costs £1bn per year more to run than it generates in income. The planned increases will reduce this deficit by an estimated £64 million per annum. It will not, as some sources report, turn the court system into a ‘profit-making’ business. It is not designed to make profit, but instead to reduce the overall cost to the tax-payer and transmit the cost to court users. It is justified that those using the court system should pay for its use.
The administrative cost of a divorce may only be an estimated £270, but many litigants will go on to issue financial proceedings which can entail several hearings over many months - at vast cost to the court system. The fee to issue financial proceedings is not rising, however, nor is the fee to issue children proceedings. The cost to the justice system of these often-protracted children hearings clearly cannot be covered by the £215 court fee alone. Arguably, the cost of applications for child arrangement orders should also be increased - not only to further reduce the deficit of running HMCTS but, more importantly, to discourage many parents from taking to the courts to settle disputes about their children and facilitate more effective co-parenting, thereby reducing the emotional toll on the children involved.
In terms of impact to access to justice, I am unconvinced that the family arena will be grossly affected. The fee remission system remains in place for those most in need and improvements to widen the scope of remissions are afoot. The government has a consultation in place until 15 September 2015 (accessible on the Ministry of Justice website) intended to look at the remissions scheme and how it can be made more generous to promote greater access to justice for the vulnerable.
In order to streamline and improve efficiency, investment is clearly needed. Whether that investment is used for central divorce centres, better IT systems, online courts, new protocols or centres of excellence, these improvements must be funded somehow. I believe that, though unpopular, such fee increases are a necessary evil for the greater good.
Against fee increases
Karen Dovaston is a member of the Family Section Advisory Group. She is deputy head of the family law department and a family law arbitrator at Jeffries Solicitors.
So, the MoJ is consulting (again) about a proposed increase in court fees. The last consultation document was produced in December 2013. Remember that one? That was when the MoJ said that the HMCTS should be ‘profit making’. It also undertook a cost analysis of each type of case. The bean counters worked out that, whilst a divorce petition took nowhere near £410 to process, it would be a good idea to propose whacking up the fee to an eye-watering £750 to make things ‘break even’. This proposal (after the expected lambasting) was eventually dropped in January 2015. Yet here we are again, this time with the proposal that the divorce issue fee go up from £410 to £550. Alongside that, the fees for part 18 applications would rise from £155 to £215 and consent orders from £50 to £100.
Why are court fees, particularly in respect of divorce, being looked at again? The cynic in me responds that it is because the HMCTS has a captive audience. If you want to be divorced, you have to start court proceedings. You have no choice, unlike, say, if you wanted to sue your neighbour who backed their car into yours. With the latter scenario you have a plethora of options - mediation, arbitration and so on. You might even have legal expenses insurance. Not so with divorce. No legal expenses insurance is available and you can’t be divorced without the court order of decree absolute. It is the same for applying for a consent order to wrap up the financial side. You can settle it by agreement, sure, but you still need the court order to tie things up. If you can’t settle it and there are court proceedings, it is likely there will be at least one expert needed - if only to value the house. Hello, part 25, part 18 and a court fee.
On behalf of my clients, I feel really aggrieved about this. Talk about making money out of people’s misery! It is not as if they have a choice. I know we read about the ‘big money’ cases with lots of zeros, but we all know that for an estimated 99 per cent of the population that is not real life. Most of the families we serve do not have pots of money. How is it fair that a standard fee is levied across the board, higher than the actual cost to HMCTS in delivering the service? There is the fee remission system, which is tortuous and very limited indeed. It is not even automatic exemption if a client gets legal aid and the documents for the court (along with the assessment itself) are different to the documents needed for legal aid and the legal aid assessment criteria. It is also not good enough to say flippantly that people pay more on the reception and their wedding photos than they do for a divorce petition. That is just rather patronising, frankly, given that no one gets married expecting it all to fall apart and cause great upset.
Let’s look at the proposed fee increases in context.
Legal aid has been cut without any impact studies being undertaken. Around the same time as the MoJ is consulting about upping court fees, it is also consulting about closing and consolidating courts. (Side note: pity it could not have looked at that before chopping legal aid.) This is all on the back of Designated Divorce Centres ‘going live’, again with the cost-cutting aim of using legal advisors rather than judges.
So, those accessing the family court get to pay far more for the privilege than it costs to undertake their cases (ergo they are subsidising others) and they get to enjoy the delivery of the service in cramped buildings with fewer interview rooms, cheek-by-jowl with cases that have nothing to do with family law. I thought we thought sticking family cases alongside criminal law matters was not a good idea. Apparently ‘we’ have changed our minds.
Then let’s look at the court buildings and delivery of service itself.
Sure, the MoJ now says that it will ensure that some of the income generated will be used to improve the service, but frankly, it has not done very well on that score so far, has it? None of our local courts have wi-fi. Even McDonalds and Starbucks have got that one nailed. The court computer system can’t handle Word documents, so email in your court orders by all means, but they still have to be retyped. Brilliant. However, at least the CJSM email works well, no? Er, no. Frustrating. Annoying. Some court staff have said merrily, ‘Oh we don’t look at that one. Just send in to the usual address’. Others delete emails with attachments unless they are sent by the CJSM. Things are kept interesting for solicitors, as you can never be sure which court is doing what. Rather like an email version of Russian roulette, which is nice, as the legal life is not really stressful enough.
I am deeply suspicious that the reason the civil court system and, in particular, the family court system is so lacking in services is that the fees generated in the civil side have been diverted over to supporting the criminal justice system.
A government that wants to look strong on crime and punishment may well pass new laws, but then those laws have got to be prosecuted, haven’t they? More criminal offences means more criminal cases, more cost to the criminal justice system and no lovely court fees coming in. On the civil side, the courts are draconian in applying a no fee/no reply/no order system because they are told to by the MoJ, and looking at the woeful facilities, it is doubtful that any of those fees have been spent for a long time on improving IT or integral systems in the court.
In my view, we, as a society, have to decide what we consider important to us.
We have to consider how we want to treat our young, old, sick and vulnerable. We then have to consider how to fund what we want and raise it through proportionate taxation. I disagree with the proposition that the delivery of justice should be a profit-making enterprise. I accept that there has to be some attempt to balance the books, but until the link between politics and meddling with the justice system is severed so that the civil justice system and the criminal justice system are analysed separately, there will always be the suspicion that ordinary folk are being taxed by the back door and that the money is being used to support the crime and justice platform of the politicians in charge.