62 1GM Thursday December 3 2020 | the times
Law
A rule requires separating couples to attend mediation before advancing their case, but a report says it must be enforcedParents at war
should make
own decisions
Court should be a last resort for childcare disputes,
says the top family judge. By Catherine Baksi
Separating couples should head to
court to resolve disputes only as a last
resort, the most senior family judge has
said, as cases and delays spiral.
Sir Andrew McFarlane, the president
of the family division, has warned of
“unprecedented” demand as a “start-
ling and worrying” number of separat-
ing couples — 40 per cent — are asking
judges to determine issues about their
children’s care, rather than exercising
parental responsibility and sorting
problems out themselves.
Earlier this year Judge Stephen Wild-
blood raised concerns about court lists
being “clogged” with “unnecessary”
parental disputes. He had been asked to
decide at which motorway junction on
the M4 a child should be handed over.
Sir Andrew suggests that in most
cases, where there are no issues of
domestic abuse or child protection,
parents ought to be able, or encour-
aged, to make arrangements for their
children. Instead of parents seeing the
court as “the first port of call”, he says it
should be regarded as “the facility of
last resort”.
He was commenting on a recent re-
port from a judicial working group that
aimed to find ways to improve out-
comes for children and divorcing cou-
ples. The report warned that the system
is in “crisis” and said the courts are
“stretched beyond limits” by “unman-
ageable” numbers of applications, often
on matters “that should never have
reached the doors of the court”. The
report did not blame the “broken”
system on parents, but on successive
governments that had funded the
family justice system “with the door of
the court open to all”.
The trend towards increasing appli-
cations by parents, who are unaware of
where else to turn for help, has caused
long delays to cases, which have been
exacerbated by the coronavirus restric-
tions. The latest figures from the
Ministry of Justice reveal that the
number of private family cases — those
dealing with child contact and financial
arrangements — waiting to be resolved
has risen from 42,305 in March to
50,565 in October.
Cases take about 29 weeks to reach a
final order on average. Private law cases
come second in the queue for court
time, behind public law matters dealing
with care and supervision orders,
which have also increased. The waiting
list for public law cases has grown from
12,295 to 14,182 in the same period.
The delays to private law cases are
compounded by the fact that more par-
ties are not represented by lawyers. A
YouGov survey for the family lawyers’
group Resolution revealed this week
that the number of people representing
themselves in divorce disputes has
increased from 35 per cent to 57 per
cent in the past five years. Legal aid for
divorce cases was removed by David
Cameron’s government unless there
are issues of domestic abuse.
Rules to steer couples into mediation
do exist, but the report says they are not
followed. It recommends better train-“We have no doubt that people invent
allegations to get legal aid.”
Where allegations are made, he sug-
gests that legal aid should be provided
to both parties, with hearing listed
within two weeks to determine the
facts, and if they are false, legal aid
should be removed. More widely, he
proposes that legal aid should be given
to enable the children involved to be
represented so the court can focus on
them instead of the battling parents.
A Ministry of Justice spokesman says
there is no evidence of people making
up domestic abuse allegations to access
legal aid.
Better public education, increased
policing by judges of mediation rules,
and funding for early legal advice for
those who cannot afford to pay for it
themselves, are key, says Jo Edwards, a
partner at Forsters and a former chair-
woman of Resolution, the family law-
yers’ association. She also advocates
arbitration as a quicker and moreeffective alternative to court, dismiss-
ing as a “misconception” that it is only
appropriate in “big money” cases.
“People are in fear mode,” says Tosh
Brittan, a counsellor and the presenter
of the Divorce Goddess podcast, who
promotes mediation. “Couples focus on
the legal and financial side, but they are
raw and ragged, and need to look after
themselves, so they can make wiser and
calmer decisions.”
Ministers say that they are working
with the judiciary on ways to support
separating parents. A spokesman for
the Ministry of Justice highlights funds
given to increase court capacity and
help unrepresented litigants, as well as
the development of a co-parenting hub,
offering information about alternative
dispute resolution and signposting to
other local services. The ministry
stresses that a large proportion of cases
involve domestic abuse and other
serious safeguarding issues where a
court process is appropriate.ing for judges on the benefits of media-
tion and more robust enforcement of
the rule requiring couples to attend a
mediation information session before
advancing their case.
Lawyers and campaigners welcomed
the report. A spokesman for Families
Need Fathers says many divorcing
parents are “operating in the blind” and
need help to understand what a goodseparation could look like. Where there
are no allegations of domestic abuse, he
suggests the introduction of an “early
intervention pathway” to help couples
to achieve amicable solutions.
The lack of legal aid, he says, has
caused a “rocketing” in the number of
allegations of abuse. He tells The Times:57 per cent of people
represent themselves
in divorce disputes
GETTY IMAGESTimes Law
Editor Jonathan Ames
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020 7782 7518 [email protected]Do you, bride and groom, take your supplier to court?
Pranav Bhanot does not recall a chap-
ter on cancelled weddings in his law
student case book and guidance has re-
mained pretty scarce since.
It explains why when coronavirus
disrupted nuptials across the UK and
shifted wedding litigation from a niche
concern to half his caseload, the solici-
tor had to go back to basics.
“I’ve returned to the first principles of
consumer law to find the answers,” says
Bhanot of Meaby & Cotells, adding:
“In this climate the wedding industry
is moving faster than the law with lots
of uncertainty over how judges will
adjudicate when more cases actually
reach court.”
In the past the firm would handle a
wedding-related enquiry every few
months, but by the time mass gather-
ings were banned in March, Bhanot
says, “my inbox was flooded and I’m
now pursuing venue refunds totalling
£2 million as well as representing
wedding providers fighting for surviv-
al”. With full payment upfront to
venues being common industry prac-
tice, 50 per cent of Bhanot’s cases are
about recovering paid funds ranging in
value from £7,000 to £340,000.
The bulk of disputes concern suppli-
ers trying to retain a proportion of the
budget they hold, claiming to have
already incurred costs such as the or-
dering of equipment that couples argue
were not detailed in the contract.
Bhanot sees the lack of transparency
as symptomatic of a sector short on
governance compounded by consumer
naivety. However, he is optimistic there
will be greater due diligence on both
sides in future.
“There are suppliers I’m represent-
ing who are saying to me, ‘I don’t care
what it costs just make me compliant,’
he says “Even when the pandemic dies
down we’re going to see more being
spent on the drafting of contracts.”
The wedding industry is valued at £14
billion in the UK, so there is a financial
impetus for businesses to put their
houses in legal order. Indeed, one brideis checking the small print more closely
this time as she rearranges her wedding
with a new venue for next year.
The woman from Buckinghamshire
has requested a clause that entitles her
to a full refund if the event is cancelled.
The aim is to avoid a repeat of her
planned June nuptials, which she
claims were cancelled by Bijou Wed-
dings Group hours before the first lock-
down was announced, with the London
company demanding that she pays an
80 per cent cancellation fee of £32,000.
“The dream was a Saturday wedding
in June this year,” she says. “We were
offered dates in November or a week-
day in June 2021, but with no reduction
in cost.”
Like 47 per cent of couples, according
to Hitched.co.uk, she hadn’t taken out
insurance. She instructed BP Collins
Solicitors, but with both parties unable
to agree a settlement, she has joined the
queue for a trial date. Legal fees are
already nudging £40,000.
Sam Cutmore-Scott, the managing
director of Bijou, denies the companyvoluntarily cancelled the wedding con-
tract and says it was forced to close the
venue in line with government gui-
dance, restrictions and ultimately, the
initial lockdown period. The company
states the cancellation fee is set out in
the contract and that alternative dates
considered to be inferior were offered
at a discount of the original value.
Jacob Gatley at BP Collins says the
uncompromising stance of suppliers
has left couples with little option than
“reluctantly” to seek legal redress to
recover their money. He claims to have
seen a doubling in that area of business
since March.
Gatley was unprepared for the emo-
tion involved compounded by the num-
ber of suppliers who have “refused
point blank to engage”. He says that it is
a frustrating stance abetted in part by
the complexity and general lack of
awareness around this area of law.
Gatley points out that the legal reme-
dies available to consumers will depend
on which of the parties cancelled the
wedding, when the venue could legallybe open, or if it was unable to go ahead
because it would have breached lock-
down laws. “In the case of the latter, we
would say that the contract is frustrated
and the consumer will be entitled to a
refund,” he says, warning that “this is
entirely dependent on the facts.”
For Raja Yousaf, a partner at Graham
Coffey & Co, which launched a
specialist wedding litigation depart-
ment in March, the matter is further
complicated by suppliers simply shut-
ting up shop. He highlights a couple
who were awarded their venue deposit
by a court only to learn the next day
that the company had gone into liqui-
dation, an experience he anticipates
will become common.Caroline Bullock