Access to justice in the family courts is threatened by Government policies driven by a need to recoup or save costs, Britain’s top family judge has warned. Sir Mark Potter, President of the Family Division, has told The Times of his concern that current proposals, if pursued, will put the system under “increasing strain” as well as affect access to the courts.

Judges, he said, had repeatedly made their opposition known to recouping the full costs of running the courts through fees charged to users. The higher court fees that came into force in May had resulted already in a drop in care case applications by local authorities. He said that he now anticipated a “similar dampening effect” in private law cases, such as disputes over contact with children.

“Full cost recovery is an illusory goal in any event as it will not extend to the poorest families or partners who will be entitled to exemption.” It would bear heavily, he said, on those who were above the “exempt” level but who could not afford legal fees. “I know of no other major jurisdiction worldwide which takes the view that the policy of full cost recovery is either justifiable or desirable in an area essentially concerned with matters of social welfare following the breakdown of relationships.”

Councils were under a statutory duty to take proceedings to protect children. “It is not a question of voluntarily taking advantage of the system in the way that can be said of ordinary citizens going to law.” No one, he added, asked the police to pay a fee to come to court for the prosecution of criminals.

Ultimately it was a matter of Government policy. But although £40 million had been set aside to compensate councils for court fees, the money was not “ring-fenced” and in danger of being used elsewhere.

Sir Mark accepted that if councils did not go to court, children might suffer harm, although he did not believe the policy would affect cases “where real physical harm is threatened or endangered”. He cited cases of persistent neglect or inadequate parenting which normally would lead to proceedings but might prompt councils to seek alternatives such as placing the child elsewhere.

Access to justice was also threatened, he said, by a reduction in the number of experienced family work lawyers prepared to do legal aid in the face of fee cuts. Judges had already made their views known on this. The result would be an increase in legal “advice deserts”, that already existed in some parts of the country, and in the numbers of “litigants in person”, where people went to court unrepresented. “This creates enormous difficulities not simply in procedure and process of the case, but in the consequent delay” because judges “naturally do their best to preserve the balance (between the litigant in person and lawyer on the other side) and give such litigants a full chance to make their points in a way not normally given to counsel”.

The proposed cuts also would lead to fewer family lawyers. These, he said, were not the “‘fat cat’ end of the Bar at all” but “people largely acting out of idealism, so far as solicitors are concerned”. Barristers, too, were a “dedicated group who do a decent job for a no more than adequate fee” .

A cut in income would result in solicitors “leaving the field altogether” or reducing their legal aid work, leaving it to those who were “far from the most experienced”. Similarly, if prospects were reduced at the Bar — where the “good work” in family law was done by experienced “juniors” — then the work would become less attractive. “It’s not a question of more money; it’s a question of not making reductions from the present already very tight level.”

Sir Mark also commented on the way a divorcing couple’s assets were split, another potential area for reform. He distinguished between run-of-the-mill cases, where there was enough money in the pot only to cover a couple’s reasonable needs, and “big money” cases. He said that because “the ingenuity of lawyers” was unlimited and parties unlikely to be conciliatory, introducing a more detailed regime on splitting assets was unlikely to achieve “greater certainty of outome. Instead, this area is a matter for the Law Commission”.

In general, Sir Mark said that the justice system was in good working order, if at “full stretch”. As for criticisms, judges felt “a righteous sense of unfairness and indignation” but “by and large put up with it”. He is keen to open up family justice (The Times, October 20); meanwhile, judges were resigned to knowing that they had “to have broad backs and apply the law as they found it” including — in children’s cases — “making the welfare of the child paramount”.

If that inspired attacks from “disgruntled parties”, that was a hazard of the profession. As for charges of “so-called secret justice”, judges would have to put up with that — unless or until the law was changed, in which case, he said, they would “continue to do their job".

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