An unexpected, but as always, welcome opportunity to explain the important contribution that is made by our members to public protection, came in the form of Tuesday’s release of a report secured under the Freedom of Information Act. The subject matter was the number of registered sex offenders who have vanished from the map whilst under police supervision.
Tania Bassett was busy for the best part of the day doing a number of BBC radio interviews and I was invited to take part in the live morning debate on Sky TV News. It struck me early on in the coverage that there was a huge knowledge gap within the media about who does what in the management of those on the sex offender register and the vital role of probation.
As usual, the generic media coverage had lumped probation into the story about the 400 individuals who had ‘disappeared whilst they should have been monitored by police and probation,’ and it was important for us both to get the facts across about what our role is, what happens once our part in the supervision process is complete and how the MAPPA system actually ensures that public protection is a priority alongside the need to try and achieve the rehabilitation regime. The Sky News slot also gave me another chance to point out the difficulties that our members are experiencing within the NPS as a result of the Grayling reforms.
It would have been all too easy to simply say that the blame for a failure to supervise the individual following the expiry of their licence or order was simply down to Police incompetence, but I was able to point out that the austerity agenda has had a massive impact on public agencies everywhere. Unfortunately copyright rules prevent me from posting a link to the TV debate, but I am told by viewers and listeners that Napo gave a good account of the value of our members.
The pre-election run in will produce all kinds of stories but our analysis is that those relating to the Criminal Justice system are unfortunately not likely to feature as key priorities for the media who seem obsessed with how many kitchens Ed Milliband has in his house and the absurd utterances of UKIP spokespeople about what their leader actually said and meant on any given day. Nevertheless, expect us to do all that we can to keep our issues out there, and to get on the end of similar openings should they present themselves.
Timely reminders
In that respect it was good to briefly meet with Sadiq Khan before he spoke at a presentation by UNITE at Westminster on Wednesday. Sadiq along with other speakers provided their views about how the Justice System ought to look under a new Government.
I was able to let him know about the evidence that we are compiling around possible service delivery failures in some CRC’s which represent our best chance of exposing TR for the mess that it is likely to become if current trends are not resolved.
Here is the link to the booklet that was issued at the launch: Unite the Union Magna Carta today
Resolution’s Manifesto for Family Law
Still on the election trail and this week’s meeting of the Family Court Unions Parliamentary Group received a briefing paper from our friends at Resolution, a national organisation representing over 6,500 family justice professionals committed to the constructive resolution of family disputes. Emma Hopkins Jones, Associate Solicitor with Simpson Millar, sits on the West and North Yorkshire Resolution regional committee.
Resolution’s Manifesto makes six key calls for change. It asks the next government to:
1. Protect vulnerable people going through separation – Since the cuts to legal aid in April 2013 many vulnerable people have not been able to access support when they are separating. Publicly funded mediation is down 45% since the cuts despite funding being available because solicitors were a major source of information to people about non court solutions. Many people who would be eligible for legal aid funding because they are victims of domestic abuse cannot access that support because they struggle to provide the necessary evidence as no funding is available to help them obtain this. Resolution propose a “family law credit” by providing legal aid to enable someone on a low income to access advice on separation from a family law professional about all of the options available to them. Resolution also proposes reform to the child maintenance system and abolition of the new £20 application fee and collection fees which penalises those parents who are unable to reach an amicable agreement and only impacts vulnerable children.
2. Introduce measures to keep divorce out of court – Resolution welcomes the current Government’s commitment to helping people access mediation and support its introduction of Mediation Information and Assessment Meetings (MIAMs) to ensure most people consider mediation before applying to court. However, the Government’s intentions are not reflected in policy outcomes – publicly funded mediation numbers are down by 45%, and unrepresented parties coming to court are on the rise.
The Government has focused its attention on mediation as the only alternative to court. But for some couples, other dispute resolution options such as collaborative law, solicitor negotiation, arbitration, or helping people reach agreements themselves can work better for their circumstances, while keeping families out of court and minimising conflict. There is no such thing as a ‘standard’ divorce or separation and people need to be aware of all of the options so they can choose what is right for them.
Resolution proposes to change the way MIAMs are described and implemented so that information about all non court options is provided. Further, the availability of legal aid should be extended for all dispute resolution options. People should be able to choose which out of court method will be most suitable for them, with funding available for the use of one chosen method – not just mediation.
3. Introduce a Parenting Charter to help parents understand their responsibilities when they separate - Resolution proposes a ‘Parenting Charter’ clearly setting out:
• what children should be able to expect from their parents if they are separating and
• what separating parents need to do in the interests of their children.
Resolution believes a greater shared understanding of rights and responsibilities of both parents (and their children) will reduce the likelihood of parents going to court.
4. Allow people to divorce without blame - Divorce without blame was provided for in the Family Law Act 1996 but never enacted. The Government’s own Family Mediation Taskforce recently recommended that divorce without blame be introduced.
Divorce without blame will increase the chances of success for non-court dispute resolution processes as it immediately puts both partners on a level footing. This will reduce the burden on the family court and help government to meet their aim for more people to resolve their problems outside of the courts.
Resolution proposes a new divorce procedure, where one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and, after a period of six months, if either or both partners still think they are making the right decision, the divorce is finalised.
5. Help people understand how their divorce will affect their future finances - The removal of legal aid has led to a rise in unrepresented litigants, with over 50,000 people representing themselves in family disputes in 2013.
Divorce law relating to finances is complex and difficult to understand. Outcomes can be difficult to predict, even for legal professionals. Section 25 of the Matrimonial Causes Act 1973, which determines how money is divided up on divorce, has fundamentally remained unchanged for the last 40 years. The concern is that people separate with little or no understanding of the financial consequences of their break up, making it more difficult for them to reach agreement and placing a greater burden on the court system.
Resolution calls for clear guidance for people entering the court system, so that they are more aware of the potential outcomes and consequences, and for a wide-ranging reform of the financial provision system to achieve more clarity.
Resolution also proposes that enforceable agreements (commonly known as ‘pre-nups’) should be permitted with suitable safeguards. The independent Law Commission has also called for change in this area.
6. Provide at least basic legal rights for couples who live together if they separate – 2.9milion couples were cohabiting in 2013 – up from 2.3million in 2003. 47% of the public aged 18-34 think cohabiting couples have the same legal rights as their married counterparts. Resolution proposes that cohabitants meeting eligibility criteria indicating a committed relationship would have a right to apply for certain financial orders if they separate. This right would be automatic unless the couple chooses to ‘opt out’.
The Family Law Department at Simpson Millar fully supports Resolution’s manifesto. In addition, we would urge the next government to:
• Look closely at the Exceptional Case Funding (ECF) regime for Legal Aid as the supposed “safety net” of ECF continues to be almost non-existent with between 8 and 10 applications being granted for family cases per year. It isn’t working leading to situations such as in the cases of Q v Q, Re B (A Child) and Re C (A Child) [2014] EWFC 31 considered by the President of the Family Division Sir James Munby where the impact of the Father not having legal representation was that where a trial or finding of fact hearing is required the father is in the position of being required to undertake his own cross examination of the alleged victim. In cases of rape or other sexual offences this would not be permitted in a criminal court. Sir James Munby stated that if the father’s resubmitted application for ECF was refused, he was unable to afford representation and pro bono representation was not available the cost of legal representation for the father would have to be borne by the court budget (HMCTS).
• Consider carefully how necessary expert evidence is to be funded in cases where one or both of the parties is unrepresented because they are not eligible for legal aid funding. The recent decision to fund DNA testing in such circumstances is welcome, however, this should be extended to cover necessary expert evidence such as drug and alcohol testing where the court determines this is necessary.
• Greater oversight and possible regulation of McKenzie Friends. A McKenzie Friend is someone who accompanies a litigant in person to a Court hearing. This should be for the purpose of assisting them in matters such as taking notes, organising documents and quietly making suggestions. A McKenzie Friend is usually a non-lawyer and usually has no right to address the Court. Often a they are a friend or colleague of the litigant in person and can be of assistance, but there are McKenzie Friends who have a political agenda and McKenzie Friends who charge for their services. Anecdotal evidence reports an incident of a paid McKenzie Friend who acted for a number of vulnerable women who had found to have a substantial criminal record.
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