Family Court delays, mediation and arbitration

Sir Andrew MacFarlane, the President of the Family Division has recently spoken out over the increased workloads and delays being experienced in the family courts and the high levels of stress being faced by all who work in the family justice system. Echoing the long held view of the family team at Birketts, the President likened the current position ‘as trying to run up a down escalator’.

So how has the Family Court descended into such a poor state? The President has cited a number of reasons, which have converged into ‘the perfect storm’ currently experienced by our beleaguered Family Courts, specifically in relation to cases regarding children.

Firstly, there is a significant increase of applications received by the Court.

Secondly, more cases are being dealt with by those who self-represent rather than using lawyers.

Looking at each in turn, whilst it is correct that there has been a steady increase in the number of applications made to Court since 2014 concerning arrangements for children or their protection, (when Child Arrangement Orders were introduced) we should not overlook the impact of government policy in the law passed by the Coalition Government in 2012, known by its initials as LASPO 2012, which removed Legal Aid from most family cases (unless there were Care proceedings or there was evidence of domestic abuse). The Child Law Advice Service took 15,500 calls regarding private children cases (those not initiated by the Local Authority) in 2016/2017, 9500 of which (61%) were from people who would have been eligible for Legal Aid prior to LASPO. 

The removal of Legal Aid appears to be inextricably linked with the increase of those representing themselves because without representation the litigants were not advised about possible alternatives – such as mediation or collaborative law, or given any steer as to what the likely outcome might be, and whether a case is worth taking or whether, and if so, what, compromises might be made at an early stage to prevent court action.

Court statistics show that in 2012/2013 42% of cases involved one or both parties who were self-representing. In 2016/2017 a report suggested that figure had increased to 64%. The President in a recent Radio 4 interview noted that cases with self-represented parties took longer in court as Judges needed to explain procedure, the system and what would happen. If the parties were represented, there would be no need. He went on to say if parties to proceedings were represented there was a chance that the case would have been resolved before reaching Court. This reflects what we and other family lawyers have been saying since LASPO 2012.

Our experience is that Court lists are full; cases now take longer in Court; more people are representing themselves; more families are issuing Court application than over the previous 5 years; Court buildings in Suffolk and Essex have closed; there are fewer Judges and Magistrates sitting; and those that are sitting are factoring the work pressure and impact of self-representing parties onto time estimates so that a case which might have taken 1 day, is now listed for 2 days. All of these factors combine to bring about the unsatisfactory position many local families find themselves in – when they ask the Court to help them decide arrangements for their children, (because they cannot do it themselves for whatever reason) they have to wait months for a Court hearing, which could be in the next county.

In our experience, cases heard before magistrates are being dealt with summarily. The time given for a hearing is too short for the cases to be made and for proper reflection by the bench to be made before a decision is made. The result is that the outcomes are frequently not properly thought through, and with errors or omissions. This is not reflected appeals from the magistrates because parties are often exhausted by the end of the hearing, dispirited and cannot afford the costs of an appeal. The children are the losers in those circumstances.

So, what is the solution? Short of pumping money into the Court system and overhauling the current procedures there is no ‘quick fix’ and yet without pumping in money the future looks very grim. We have the Rolls Royce statute in the Children Act 1989 which in many ways set the gold standard in the western world Restoration of Legal Aid may well reduce the number of cases proceeding through Court (and reduce the time of each case in Court) but there is little government appetite to restore the Family Law Legal Aid budget. Rather than trying to patch the cracks of a broken system, why not address the cause of the issue?

Separating parents need advice on how to parent apart. They might need assistance to work out what is feasible where there are the competing interests of each other and of course the children themselves. Provision of this advice does cost money – whether through publicly funded Leal Aid in appropriate cases, through information programmes or by paying for legal advice. Sending them on a Court ordered course once proceedings have been issued is akin to shutting the stable door once the horse has bolted. Birketts are able to refer clients to parenting courses run by experts, designed to support parents, rather than pitting them against one another.

Parents don’t want to resolve their issues in Court but are concerned about the lack of alternatives if they cannot find agreement. Birketts advise clients on all possible out of court pathways, including solicitor led negotiation, collaborative practice, mediation and arbitration. We have a qualified mediator in each of our offices throughout East Anglia and also regularly refer clients to local mediators (including via Skype if need be). We are able to refer clients to Arbitrators skilled and experienced in resolving child disputes.

Sometimes, it is not possible to refer to mediation or arbitration (one parent may not consent or they may be safeguarding issues). In such cases we will assist and guide clients through the Court process involving experts as and when necessary.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2019.