Mediation in freefall due to lack of legal aid
The Law Society of England and Wales is today (25 October) warning that the backlogs and delays in the family courts, which are affecting tens of thousands of children, will continue until legal funding is restored for early legal advice.
Analysis reveals the government’s ambition of encouraging mediation has been fundamentally undermined by its own decision to cut funding for early legal advice for family matters.
The latest statistics* show mediation has collapsed over the last decade, with 19,000 fewer assessments (down 62%), 6,000 fewer case starts (down 46%) and 4,700 fewer successful agreements (down 53%).
It comes as the number of private family law cases involving children reached 97,098 in 2022/23, up 17% from 82,818 in 2021/22.**
Law Society president Nick Emmerson said: “If the government is serious about tackling the backlogs and delays in the family courts, they must reinstate legal aid funding for early advice.
“It is the key to the government’s push to encouraging separating couples to mediate, many of whom will otherwise have to navigate the system without representation***, adding further delay and distress.
"Without action we will continue to see thousands of couples and their children unnecessarily caught up in the legal system and unable to move on with their lives.”
Notes to editors
* Mediation statistics taken from the Legal Aid Statistics: April to June 2023:
** Figures from Children and Family Court Advisory and Support Service (Cafcass):
“The biggest increases have been in private law proceedings. We worked with 97,098 children in private law proceedings in 2022/23 compared with 82,818 in 2017/18, an increase of 17.2%”
*** Since the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) was introduced, there has been a huge rise in the number of people representing themselves in private family law cases. The proportion of private family law cases where both parties are represented fell from 45% in 2012 to just 19% in 2022, while the proportion of cases where neither party was represented increased from 13% to 39% over the same period:
MoJ, Family Court Statistics: April to June 2023, Table 10
In April 2013, private family law was removed from scope via the LASPO except in relation to domestic violence or child protection cases.
In 2019, the government admitted that the decision to take private family law out of scope for legal aid was “the most significant factor” in the fall in mediation over the last decade:
“The loss of the primary referral routes to mediation is the most significant factor in the post-LASPO decline in MIAM uptake. Prior to LASPO, the majority of referrals to mediation were made by legal aid funded solicitors. The removal of private family law from the scope of legal aid removed the opportunity to refer cases towards mediation.”
Ministry of Justice, Post-Implementation Review of LASPO, February 2019
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