On 10 January 2006 Baroness Ashton announced a massive increase in family court fees, a result of a consultation paper produced by the Department for Constitutional Affairs on 23 September 2005.  The consultation period ended on 18 November and over fifty responses were received by the DCA. On 20 December the Family Proceedings Fees (Amendment No. 2) Order 2005 was made which implemented all but two of the proposed fee increases.

These fee increases place an unfair burden on people on low and middle incomes in society.  The Government asserts that exemptions and remissions, together with legal aid, ensure that access to justice for the less well off is protected.  However, under current eligibility requirements only the poorest members of society benefit.  An individual with an average weekly income would certainly not qualify for an exemption and will not, therefore, be protected from the impact of increases to court fees.  Protection must be given to litigants of modest means to ensure that access to the court system is available to them.

That the capped legal aid fund is under strain is common knowledge. This problem will be exacerbated by the increases in family court fees.  Although individuals acting in person may apply for exemption of Court fees, as in divorce, once such individuals have solicitors on the record, such as for an application for contact or ancillary relief, the solicitor pays the court fee and is re-imbursed by the legal aid fund.    

There is further concern that the estimated impact on the legal aid fund arising from private law family fees in the higher courts -  £800,000  - is far short of reality.  To indicate this, just two items affecting the legal aid fund are outlined below.

The estimated additional income “[o]n the filing of a request for a detailed assessment where the party filing the request is legally aided or is funded by the Legal Services Commission” is £1,147,517.  Surely this must all fall on the legal aid fund?

The Government proposed to increase the cost of an application on notice for ancillary relief from £210 to £380; it estimated that this would generate additional income of £3,611,596. But again, a substantial part of this must come from the legal aid fund.

These are the outcomes from just two of the many increases listed.    Applications for parental responsibility, contact, residence orders and other frequently used applications have also risen steeply.  Taking all these increases together, the resulting sum will greatly to exceed the impact assessment given.

The DCA recently launched unprecedented guidance calling for better joined-up thinking to ensure all government departments address the impact on legal aid when formulating policy.

The implications for the legal aid fund of the significant rise in court fees must be given serious consideration, as must the impact on legal aid firms as they must pay out the cost of the court fees and await re-imbursement from the legal aid fund.   Reimbursement may take place over an extended period of time.   The greatly increased fees will aggravate the cash flow burdens on the diminishing number of firms, which undertake this essential work.

The difficulties that local authorities are having trying to manage limited resources in relation to children cases are also well known.  Fees under Part 4 the Children Act 1989 (“the Children Act”) fall predominately on local authorities.  Consequently, any increase in these fees will take resources away from the most vulnerable and deprived children in our society. 

The fee increases effectively harmonise family fees in the family proceedings courts with equivalent fees in the county courts. The bulk of these fees are paid by local government authorities, which are responsible for issuing care proceedings. These increases will have a clear impact on local authority resources.

The fee for a divorce petition, increased in January 2005 from £180 to £210, has most recently been increased to £300.   Such a large increase in costs may lead to weaker parties being unable to take a case to court, and to greater animosity and bitterness between parties to a dispute – a particularly undesirable effect where the parties have children..

The cost of applications for contact, residence and parental responsibility orders has also increased significantly.  The Law Society considers that these increases are entirely inconsistent with Government policy which is to support parents having contact with their children, provided it is safe to do so.  Instead, these increases make it more difficult for parents who need to access courts to apply for residence, contact or parental responsibility orders.

The Law Society fully acknowledges the Government’s right to consider ways of making efficiency savings. It therefore supports proposals for the introduction of a single-family court and a single civil court. This would allow the court service to manage resources more efficiently, reduce costs and save money. 

However, the Society does not support the proposition that the costs of the Court Service should fall exclusively on litigants.  The Government should recognise that both civil and family court cases that proceed to trial can contribute to the development of the common law in England and Wales.  Some of these cases raise novel or difficult issues of law that require to be clarified through a judicial decision.  The Government must therefore recognise that courts provide an important public service, similar to health care and education, and that taxation should help to pay some of the cost of running the courts.

The Society believes that the only solution is to reassess the current policy of full cost recovery.  The future of our civil justice system is uncertain if this policy is pursued.  A healthy civil justice system is essential for a socially and economically stable society and provides a benefit for all and not just those who use it.

The Government must examine whether its current service delivery model provides ‘value for money’ to its customers. The Court Service has vast overheads relating to heritage buildings, which are completely out of proportion to the services they provide.  It is also unclear how the “cost” of the Court Service had been calculated. This should be explained and clearly visible.
We suggest that the Government give consideration to reducing the initial filing fee in cases where it is substantial, like ancillary relief and introducing a graduated series of smaller payments. This would ease cash flow burdens on those with moderate income, and result in litigants being charged in proportion to the court resources that they use.  This suggestion is in line with the Government’s recognition that making an application in family proceedings is not to be considered an aggressive action, and also with Government policy that encourages parties to reach an agreed settlement in family matters.  
We are concerned that the proposed harmonisation of family fees in the family proceedings court with equivalent fees in the county courts will lead to further delays in the county courts.  This is because there will no longer be a financial incentive for parties to file applications in the magistrates’ court.  The Law Society urges the Government to introduce a single-family court to improve management of family cases. 

The solution is not solely a matter of users of the courts generating revenue.  The civil and family courts play a valuable role in Society and serve the wider public interest.   This should be recognised by the Government in the form of key investment in modernising and maintaining the courts.  Relying solely on court fees as the mechanism to finance the continuing need for modernisation, infrastructure, and other improvements is unsustainable.  It is worse than that.  Increases are not matched by any corresponding reduction in general taxation.  They therefore amount to a stealth tax on those who are compelled to resort to court proceedings.  This is grossly unfair and hardly conducive to improving access to justice.

Kevin Martin, Law Society President.