The news that the Court of Appeal is to stop hearing all challenges to decisions made in local family courts serves as yet another reminder of the pressure our family court system is under.
The position has been that any challenges made against judgments given in local courts would be heard by the appeal court. However, such challenges are now more likely to be heard by the Family Division of the High Court in an effort to relieve pressure on the higher court.
With family courts already overloaded after 2013’s legal aid cuts and ongoing cuts to funding, it is difficult to see how diverting more work to lower courts will ease the pressure. There are simply too many cases in the system – a sentiment echoed in comments by Family Division president James Munby, when highlighting the rise in the number of care cases. He said: ‘I [have drawn] attention to the seemingly relentless rise in the number of new care cases. The fact is that we are approaching a crisis for which we are ill-prepared and where there is no clear strategy to manage the crisis. What is to be done?’
Evidence supports this worrying analysis. As practitioners, we see it with our eyes and we read it in statistics. The quarterly Family Court Statistics, for example, showed some stark trends:
- a 10% increase in overall cases started in family courts in England and Wales year-on-year;
- a 16% increase in the number of private law cases being issued between April and June 2016, relative to the same quarter last year;
- the number of public law cases started has increased by 24% over the last 12 months;
- the average time for the disposal of divorce cases with financial remedy has been steadily increasing from 20.5 weeks at the start of 2015 to 24.9 weeks in April to June 2016.
With no apparent turning of the tide in sight, and mediation information and assessment meetings/the court’s gatekeeping powers not serving to drive more couples into dispute resolution, courts are bursting at the seams, juggling ever more cases with fewer resources.
Another difficulty is that with limited legal aid available, there are many more litigants in person in the court system. The Family Court Statistics show that in 34% of private law cases, between April and June 2016, neither the applicant nor respondent were legally represented in the wake of legal aid cuts – an increase of 17% from the same period in 2013.
Since 2011, the number of cases in which both parties were represented has steadily declined from around 50% to 22%. The practical effect of this is that where one or both parties is without representation, it falls to an overburdened judiciary to provide guidance and assistance to these litigants. This naturally increases the time cases take to progress and often leads to delays where documents have not been filed and deadlines not met because litigants have no legal advice.
For those who can afford it, individuals are looking for alternative ways for family disputes to be resolved away from a stretched court system. Private financial dispute resolutions, and arbitration in particular, have begun to take off over the past couple of years, but remain a minority sport relative to the numbers who pass through the doors of family courts. It is to be hoped that the huge benefits of those processes in cases of more modest means will begin to be appreciated, and that those offering those services will package them so as to be affordable to the mass market.
So what of the future? Much of the Ministry of Justice’s focus is, appropriately, on the modernisation of the courts programme. In the family sector, there is much talk about the impact of the move to regional divorce centres and the likely progression to an online, simplified divorce process. It is noteworthy that it is thought by those responsible for policy that many people can be diverted away from the courts by having an online system of dispute resolution.
While that may be correct for certain types of dispute, it is vital that we have a fully functioning, properly funded family court system. What is more, it is imperative that the important role of legal advice is not overlooked. For too often, arguably, it has been thought that when it comes to access to justice and husbanding the now very limited legal aid budget, lawyers were part of the problem, not part of the solution. In fact, some timely, early legal advice can set people on the right course and save some of the court time taken up by litigants in person, as has been readily evident from case reports on Bailii.
While it is right, therefore, that cases should be heard at the right level and the burden on other parts of the judiciary eased, that is but one part of the jigsaw.
We need to take a step back to look at the system more holistically, and think – what are the challenges presently facing the family justice system and what, if any, other ‘fixes’ may be identified if the system is not to grind to a halt.
Jo Edwards is head of family and Miranda Nairn a solicitor at Forsters