The current head of the family courts, Andrew McFarlane, has suggested separating and divorcing couples share the same lawyer, in a speech given last month at an annual event held by the Family Mediators Association.
The suggestion follows an ongoing struggle inside Britain’s family courts to deal with a significant case backlog. While the Covid-19 pandemic has contributed to the family justice system’s overload, concerns about the increasing volume of cases in these courts have been raised by the government and court reform advocates for several years.
In the speech, McFarlane refers to the new ‘one lawyer: two clients’ model, which enables the same lawyer to advise both parties in a divorce or separation. This form of combined legal representation — which historically has not been allowed over conflict of interest concerns — has been enabled under a new law (the Divorce, Dissolution and Separation Act 2020) which lets couples make a joint application to end their relationship.
“There is now a market for legal advice to be given on the ‘one lawyer, two clients’ (or ‘one couple, one lawyer’) model. ‘The Divorce Surgery’, an early entrant into this field, is an arms length agency run by two members of the Family Bar. For a fixed fee, which varies depending upon the type and complexity of the issues, the Surgery will appoint a barrister to meet with the two parties, absorb the relevant detail from each about their circumstances, and then deliver advice as to the likely outcome if the contested issues were to litigated before a court. The model is applied to issues relating to both finance and children.”
Several law firms are currently piloting this model, including Withers, Mills & Reeve, and O’Sullivan Family Law. Family mediation lobby group Resolution launched its own scheme in September.
The event was held to “relaunch family mediation”, which has been spectacularly unsuccessful in England and Wales. Figures published by the government about Mediation Information and Assessment Meetings (‘MIAMs’) show a sharp drop in uptake over several years, while family mediation in general has decreased by at least 50 percent.
There are several reasons for a lack of family mediation uptake in Britain, none of which have been addressed by the government or the family courts. Issues include communication and trust breakdown between couples. Mediation simply cannot work in situations where parties are mistrustful, unable to communicate, or scared.
In his speech, McFarlane tries to make a case for combining the ‘one couple, one lawyer’ model with mediation, in what is an attempt at trying to keep the sector, or family law market, afloat.
Legal fees for divorce have reached unaffordable levels, and legal aid has been almost completely removed for divorce cases except in circumstances where domestic abuse allegations are made. McFarlane proposes that legal aid should be given to couples who use the model, as well as family law mediation.
That proposal could be seen as an attempt to coerce cash-strapped families into these processes, particularly as McFarlane goes on to suggest that Mediation Information and Assessment Meetings could be made compulsory, even in cases where domestic violence is present.
The fact that McFarlane suggests changing the name to Information and Assessment Meetings (dropping ‘Mediation’) and making the meetings more general in tone makes no difference to the outcome on the ground for the victim or survivor of domestic violence. It is still a meeting with their abuser, in an environment that is likely to feel deeply traumatic.
There is also currently no conclusive evidence that mediation works for divorcing or separating couples, but there are very real concerns about how initiatives like the ‘one couple, one lawyer’ model might affect a partner experiencing domestic violence.
From McFarlane’s failings to ensure the safe and correct publication process of family court judgments to his suggestion that the courts should issue “Pre-birth care orders” (which would have been illegal), this latest round of suggestions does little to reassure families in Britain that the system is competent, or on their side.