Proposal for reform: Increasing selected court fees and Help with Fees income thresholds by inflation – Resolution’s response to the Ministry of Justice

Question 1: Do you agree with the principle that fees should be increased periodically in line with inflation? Please give reasons for your answer.

No, we are not persuaded that the application of a blanket policy is the right approach. We would like to see careful consideration of the cost to provide each service.

In addition, there can be no justification for any increase to the divorce fee or any other court fees where the introduction of digital services reduces the costs of the service.

Question 2: Do you agree with the principle that HwF income thresholds, including couple and child premiums, should be increased in line with inflation? Please give reasons for your answer.

It is of course welcome that the proposals include inflationary increases to the income thresholds in the HwF remission scheme. If fees are increased in line with inflation, then HwF income thresholds should also be increased.

However, again, we consider though that there needs to be wider consideration of and consultation on the operation of the HwF remission scheme and fees exemptions. In our members’ experience, fees exemption is not widely available and difficult to evidence. A fee is not charged for applications for non-molestation orders. Private family law proceedings also have a serious purpose. Exemptions from the divorce or dissolution application fee, where legal aid is generally no longer available, and certainly for applicants who are victims of domestic abuse, would be strongly welcomed.

Question 3: Do you agree with the principle that inflation should be applied since 2016 to April 2021 levels (with the exception of fees increased after 2016, which should be inflated from the year they were last updated)?

Please see our response to Question 1.

Question 4: Do you agree with the principle that inflation should be applied since 2016 for HwF income thresholds to bring them to April 2021 levels?

Yes. The thresholds should be regularly reviewed and updated to reflect the reality of the cost of living. Any increase to court fees should also be accompanied by increased support to those most in need of it.

Question 5: Are there any fees outlined in Annex A that should not be increased by inflation, backdated to 2016, as part of this proposal?

Yes, we are concerned about the impact of another fee increase for fees in scope in the Family Proceedings Fees Order 2008.

Our position remains that the case for setting court fees purely on the basis of the cost of the service provided by the courts has not been made in relation to family proceedings. There is no justification for charging the public more than the actual cost (even as done today) of the service to pursue a legal remedy which is their right under statute. Whatever the value of the proceedings to them, there is the issue of affordability. We believe that increased fees will be beyond the reach of many and fees exemption is not widely available.

We are particularly concerned about the fee for filing an application for a divorce, nullity or civil partnership dissolution. This fee was increased to £550 in 2016 representing an increase of over 60% since 2013. This is at a level significantly above the cost of the service, both the paper and online service, with the administrative costs of the process due to fall yet further on implementation of the Divorce Act 2020. Indeed an undefended divorce under the current law is already almost entirely an administrative matter albeit dealt with by the family court. The vast majority of people consider carefully whether to end their marriage and have reflected long and hard before getting to the stage of beginning divorce proceedings. Anecdotally, our members report that, for many people they see, paying this fee is very expensive for them at even the current level. The quantum should not be acting as a deterrent if someone wants to end their marriage.

The government largely seems to simply assume that there will be a continued willingness amongst divorcing couples to pay any fee to complete the dissolution of the marriage and that those divorcing can afford to pay.

It could readily result in people remaining in marriages which have failed and in conflict for longer, which has been consistently demonstrated not to be in the best interests if children. This flies in the face of the whole point of the new divorce legislation expected to come into force later this year. And it risks people being trapped in an abusive relationship, especially without any proper review of the HwF remission scheme.

In 2015, the then government agreed that it was wrong in principle to seek to increase the cost of court proceedings associated with the breakdown of family relationships; that the fee should not deter people from seeking a divorce which could result in people being trapped in unhappy marriages, sometimes in circumstances of domestic violence or abuse, or unable to form new relationships which benefitted from the full protection of the law; and was potentially discriminatory against women. This reasoning should still apply, even if the proposed increase in itself may be moderate.

There are well documented issues of principle around the charging of local authorities to bring applications for proceedings under Section 31 of Act.

Question 6: As part of our assessment of the potential demand response, we would be grateful for feedback from consultees on the relative importance of different factors in the decision to take a case to court. These factors might include the court fee, other associated costs, the probability of success, the likelihood of recovering any debt, any personal recognition received, the necessity of taking a case to court, and any non-financial motivations such as any prior experience of court processes.

The court fee for ending a marriage or civil partnership could be determinative. Unfortunately marriages come to an end and people decide to divorce for many emotional reasons, often after attempts to save their marriage and in mutual agreement. It is not a decision to take a case to court. There is no alternative to court as the court has to process a divorce- they will have to pay the fee whether they choose an out of court issues resolution process for resolving their ancillary finance and/or children issues further to a MIAM or otherwise. Indeed, the vast majority of couples do not go to court at all in relation to resolving matters ancillary to the divorce.

The need to make any private family law application to the court is a complex one about the future of family relationships and children. It may be needed due to protection, safeguarding and child welfare factors, regardless of means.

Question 7: Do you consider that the proposal will have a disproportionate impact on individuals with protected characteristics? If so, are there any potential modifications to the policy that we should consider in order to mitigate any disproportionate impact? Please give reasons for your answer.

We are particularly concerned about the disproportionate impact on women and victims of domestic abuse of a further increase in the divorce petition fee.

The impacts in the equalities impact assessment relevant to family court users seem to have been identified but not then properly analysed in the equalities impact assessment.

For example, the assessment simply concludes that an increase in divorce fees will disproportionately affect women, regardless of whether they are in an opposite-sex or same-sex couple. In terms of age, when looking at opposite-sex couples, younger age groups (both men and women) are disproportionately affected.

For private law family cases some of the data is uncertain, unknown or unrecorded, but it is stated that there may be some groups with protected characteristics (in this case, race, age, gender and religion) that are over represented in private family law cases based on data that looks at cases involving children where there are safeguarding concerns.

For public law cases, it is stated that the burden of the increase in fees will not fall on individuals with protected characteristics so a breakdown of public family law court users has not been provided as a result. However, those non-parent family members involved, and who may well not be legally aided, even if of limited means, may be highly impacted by court fees as individuals.

Before making any further changes to court fees relating to family proceedings the scheme to help with those fees should be reviewed.

For further information please contact:
Rachel Rogers, Head of Policy, rachel.rogers@resolution.org.uk

Resolution, May 2021