Protect vulnerable people going through separation

The problem

Since the cuts to legal aid in April 2013, fewer people have access to legal support during their divorce or separation.

This restricts people’s potential to resolve their disputes, whether or not they use the courts. Before the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), solicitors provided crucial initial advice for people going through separation under the legal aid scheme, helping them to understand their options and steps they needed to take.

They were also the major point of referral to out-of-court dispute resolution. Publicly-funded mediation numbers have dropped 45% over two years, despite the Government’s objective of diverting more separating couples into mediation.

Child maintenance is one of the key issues during separation involving children, but the way the system currently works puts vulnerable families, particularly children, at risk of falling into poverty.

Since August 2014 parents need to pay a one-off fee of £20 to make an application to the Child Maintenance Service (CMS).  On top of this, the CMS started charging collection fees for people who need to use the agency to collect regular maintenance payments. These are currently 20% for the paying parent and 4% taken from the maintenance payments for the requesting parent. This means that for every £100, the paying parent will have to pay £120 but the receiving parent will only receive £96.

Resolution is concerned that these new charges may put many parents off applying to use the Child Maintenance Service altogether, and reduce the amount of maintenance actually received for a child. While we agree that there may be some need for a fee structure to incentivize regular payment directly between parents, the first statistics since the £20 application fee was introduced showed that applications to the service were down by 38% compared to the previous quarter.

This means that children in vulnerable families may be missing out on the maintenance support they need and deserve. In 2012, one in five parents receiving maintenance saw these payments lifting them out of poverty.

Our solution

Some form of initial advice from a professional, who can talk someone through the options available as well as the individual’s legal rights and responsibilities, is essential. Resolution therefore proposes a form of “family law credit” – where anyone who meets the criteria for legal aid for family mediation is able to have an initial meeting with a family lawyer to help them gather evidence they need in order to access legal aid, or to discuss their options.

It may be a combination of services, so that people are able to receive help from a legal professional at the points in the process where they need it most – so even if they end up representing themselves, they have an initial discussion about what they need or want to do.

This would provide a more comprehensive system of support and enable vulnerable people to access the domestic violence gateway to legal aid, and/or learn about and choose more options to help them than just mediation. It is also likely to result in a higher referral rate to mediation, as it would restore a major source point of access that existed before LASPO.

We also want to see reform to the Child Maintenance System to ensure children of vulnerable parents are not losing out as a result of the way the system currently works. While many people are able to reach agreement on how their children will be financially provided for after their parents separate, many others cannot. Those that need to seek help from the Child Maintenance Service to access the support they need for their children should not be penalised, and neither should their children. 

Resolution calls for the abolition of the £20 application fee and the removal of collection fees for the requesting parent to minimise the impact on the child, the ultimate beneficiary of any child support. We also urge government to reconsider whether the 20% collection fee disproportionately penalises the paying parent, and serves the best interests of families.