Family court delays fail to surprise lawyers

The latest information that delays in the family court are ‘unacceptable’ is no surprise to family practitioners. Baroness Hale commented very recently on Woman’s Hour in relation to the justice system that the delays exist because it has been ‘starved’ of the resources it needs. One impact of this is that the rate of burnout in this area of practice is high. 

Family lawyers work with clients and often face ‘opponents’ who (post the cuts to legal aid) represent themselves, and are frequently going through stressful transition, experiencing emotional dysregulation and financial hardship. Clients share details of their private and intimate lives with us, including their lived experiences of domestic abuse.

If an agreement cannot be reached with the other party resolving matters relating to finances and child arrangements, then the family court will become involved. Proceedings are about fundamental issues affecting everyday life: where a party lives, how often children live with or spend time with them and what their finances will be like post-separation.

While there is still insufficient data available about the family court to enable effective management and planning for the future, the limited published information gives an indication of the stark reality of the stress and chaos in the day in the life of a family lawyer.

For example, as of December 2024, private children proceedings were taking on average 100 weeks to conclude in London, compared with 18 weeks in Wales. Practitioners must manage clients’ expectations and cases accordingly. We face the ‘don’t shoot the messenger’ scenario daily; unable to give clients accurate projections about likely timelines and costs and answer our clients’ incredulous questions about how long it is likely to be to get a hearing.

Even when a hearing is listed, it may suddenly be changed at very short notice. A Notice of Hearing sent to parties stating ‘The court may contact the parties by 5pm the day before the hearing to inform them of any changes. This may include notification the hearing is vacated/adjourned or that the case may be heard at an alternative venue.’ As with the latest announcements relating to the FRC this can mean that counsel’s brief fees have already deemed, clients have booked time off work and arranged childcare if needed before a hearing date is altered.

As a practitioner, I inform clients that they should imagine attending the family court as ‘like going to an A and E on a Bank Holiday Monday’. Once at court (having competitively sought a private space for their client, which is not a given even when special measures may have been directed) practitioners check in with the clerk/usher to find out how many cases are on the court list for that session, when they are likely to be heard, and to assess with a professional eye what state of mind the court may be in when the matter finally comes before them.

The court may not have been a family practitioner before entering judicial office and getting their ‘family ticket’. Or the court may be lay magistrates sitting with a legal advisor. Despite best efforts, they may not have received or read the court bundle and position statements. This is an incredibly stressful environment for clients, and consequently for their legal representatives. I carry tissues, water and chocolate for clients in my court bag. To make matters worse, the fabric of the court building is often old, and the design is not conducive to hearing (and possibly settling) family cases, including when the building is shared with the criminal courts.

Responsible practitioners encourage clients to consider and utilise alternative dispute resolution – most commonly mediation and arbitration. However, there are cases when ADR is unsuitable (or not possible), when there are allegations of domestic abuse. The delays in listing and getting before the court in these cases means practitioners are struggling to obtain injunctive relief under the FLA 1996 for vulnerable adults and children. Conversely the delays are sometimes utilised cynically to prevent children from seeing a non-resident parent for long periods of time, establishing a new status quo and causing damage to the relationship between child and parent.

In recent years, the impact on family lawyers of the delays in the family court and the cuts to public funding resulting in threats to our physical, emotional and psychological safety from litigants in person, has been recognised. Firms like Birketts ensure that staff have access to mental health support (a wellbeing nurse) and through their staff benefits programme. Birketts has also run whole-team training days about working in this area of practice and the demands it places on fee earners and support staff.

On a good day the other party will be represented by a specialist family practitioner and a sensible dialogue can take place to try and navigate a fair outcome. On a bad day a litigant in person may have threatened to report you to the SRA, and your client (a victim of domestic abuse) may have endured a generic and unsuitable lecture from the weary court about the dangers for children of being exposed to ‘conflict’. Luckily, many family lawyers (and the hard-working professionals such as social workers) see their role almost as a vocation and find the job rewarding despite the delays.

Rachel Frost-Smith is legal director in the family team at Birketts LLP