By Prof Judith Masson, Professor of Socio-Legal Studies (University of Bristol Law School).*
The Family Court system costs a lot to run. Until 2008 much of the cost of running the courts came from taxes, but increasingly litigants are expected to foot the bill. So the court system cannot be thought of as simply part of securing a Just Society, like the Police, the Armed Services and Parliament, all of which are paid for from taxes. Rather courts exist as a service for those who want to litigate.
Court fees have been raised repeatedly, and for some types of proceedings, including divorce, actually exceed what it costs to provide the service. The court fee for divorce is £550. Applicants for divorce subsidize other cases where the full economic cost cannot be charged. The courts have a monopoly over divorce, which is secured by the criminal law! Remarrying whilst still married is a crime – bigamy.
There is a limited fee remission scheme (and a 16 page booklet explaining the rules for this see here). This is not a generous scheme but those who receive Jobseeker’s Allowance or Income Support and some other benefits do not have to pay court fees as long as they have less than £3,000 savings.
Applicants for domestic violence injunctions or forced marriage protection orders do not have to pay court fees. But If a local authority needs to go to court to protect a child, it has to pay £2,055 as the basic court fee – and another £455 if the care plan is for adoption! Central government is charging local government to comply with its legal duties to protect children. This is deplorable. There is nowhere else in the world where child protection agencies have to pay court fees. The Family Justice Review recommended the abolition of court fees for care proceedings in 2011. The government accepted all recommendations of the Review, except this one.
Imagine a criminal justice system where the prosecutor had to pay fees to use the courts. Unthinkable? A fee, the Criminal Courts Charge was imposed in 2015 but on those convicted not on the prosecutor. The charge, which took no account of ability to pay, was higher for those convicted after pleading ‘Not Guilty’. It does cost more to hold such trials but this approach created extra pressure to plead guilty, except, of course, on major criminals who could easily afford to pay. The Criminal Courts Charge was abolished in December 2015 shortly after a critical report from the House of Commons Justice Committee.
Local Authority fees for care proceedings do not get as much attention – but with 11,000 cases each year in England the application fee alone raises £22 million. Government funding for Local Authority services has been subject to dramatic cuts. In this context the court fees paid by local authorities mean reductions in support for families – the closure of Children’s Centres and ending grants to contact centres to meet the cost of a growing number of care proceedings.
Value for money? A good service?
Whoever pays for the court system – tax payer, litigant or local authority, it is important to get value for money. It is very difficult to see that this is the case. First, there have been changes that reduce the quality of what is provided. The courts are less accessible than they used to be. Courts are being closed across the country – litigants have to travel further to use them. Opening hours for court offices have also been slashed because hard pressed staff do not have time to operate them.
Secondly, no action has been taken to modernise most family court procedures. The withdrawal of legal aid means that many court users do not have a lawyer. Unrepresented litigants need simple procedures set out in plain English. Legal aid was withdrawn three years ago, and we are still waiting for new simple procedures. Without substantial simplification there is a huge risk of unfairness to those without lawyers. Judges struggle to hold a fair trial when parties who do not know or understand the rules. Cases take longer, and use up more court resources. This impacts on other litigants who wait longer for a hearing date. By removing legal aid the government has cut its costs, but all users of the family courts are paying the price, along with higher court fees.
Litigants want value for money – not just court fees but all the costs of litigation. They also want (and deserve) good decisions without delay. There is both research and anecdotal evidence suggesting the courts are becoming less efficient. However, there simply is not enough of the right data to establish whether the courts are working well for their customers.
The available data on the operation of the courts tells us little (or sometimes nothing) about how the courts are functioning. Modern service providers need to know many things about what they do in order to ensure they are meeting customers’ needs and not wasting their resources. Better data will show the court what needs to change and litigants how their fees are spent. New simpler processes should mean lower costs, greater efficiency and more justice.
* For more about Prof Masson’s recent research, you can read J Masson, ‘Third (or fourth) time lucky for care proceedings reform?’ (2015) 27 Child and Family Law Quarterly 3-23; and J Masson, ‘Questioning the Use of Section 20‘ [of the Children Act 1989], Family Law Week, 26 Nov 2015.