Backlog in the Family Court

Have people been putting their family cases on hold ahead of the new divorce law? With the legislation only just bedding in, it will be a while before a clear answer emerges.

The overall case count has been going down for more than a decade; and while the first quarter of 2022 saw 14 per cent more applications than the preceding three months, this variation could be merely seasonal – few want to divorce just before Christmas.

In fact, most clients have been advised that putting their cases on hold in anticipation of the no-fault divorce law may make their lives simpler. So, now that the law is in effect, will statistics show a rush of applications? Will the trend that has held since 2011 now buckle?

Trends so far

Family lawyers know that divorce is only part of the puzzle. Unlike in many European countries, in England and Wales it is treated separately from issues related to finances and, crucially, to custody of children. So the change in divorce laws alone will not free up that much time in family courts.

There is yet another dimension to the problem. In the last quarter, the number of public law cases and cases related to domestic violence increased. This will mean even greater delays in family courts. They are already becoming evident: the time that cases took to achieve first disposal in January to March 2022 has increased to almost 49 weeks, which is as much as 14 weeks longer than in the same quarter in 2020.

Some may question what this difference makes to the majority of people going through a divorce. The answer is that cases in the public law domain are given priority. Many, if not most, involve the state acting to protect children, often applying to the courts to remove children from their parents or families or to inhibit a carer’s parental responsibility.

Public or private?

Public law cases usually involve many parties, including individuals (often parents) and social services. Each case is likely to take several hearings and a final hearing likely to run for days.

What’s more, public law cases are not easily adaptable to video hearings. In many cases, there is a clear push for a return to in-person attendance at hearings. This, too, may contribute to delays.

There has also been a marked increase in the number of domestic abuse cases. Invariably, they take priority over any other matters. Such cases will usually involve an immediate application to the court, often without notice, followed by, perhaps, a contested injunction hearing. Frequently Children’s Act issues are intermingled and proceedings flow from the injunction.

Legal aid

 Legal aid is supposed to help in these cases, just like it does with public law. But here the picture is similar. There are fewer and fewer legal aid lawyers who are willing and able to deal with such matters.

Charities do step in – and they often do a sterling job – but few among their volunteers are qualified lawyers; and, in most cases, they are unable to assist after the initial without notice hearing.

And so, it is becoming more and more common for one or all parties to represent themselves. This leads to delays, not least because the judge hearing the case must often assist such people to conduct the case.

So, is the new divorce law alone going to address the family court backlog? There are grave doubts about it. There are simply too many other factors at play. If anything, delays in family courts which are now endemic, certainly in the southeast, will get worse.

Any solutions?

Can private practice lawyers help? Well, perhaps. The trend towards having a private hearing, where a case is decided by an arbitrator (usually a barrister) is already gathering pace. Many families are now facing a clear choice. They can either wait for up to a year to appear in court, – or instruct an experienced family lawyer and have the case resolved in weeks. More and more barristers are now making themselves available to decide such cases; and this practice appears to be encouraged by the courts.

Furthermore, the Ministry of Justice said it had made a £324m investment “to provide swifter access to justice in family courts”. Whether this budget increase will help to reduce delays as one of the side effects remains to be seen.

In any case, for those who can afford it, private justice is the way forward. But for those who cannot, their matters will continue to be dealt with through the courts in a slow and inefficient way, making family courts even more overwhelmed.

Anthony Kiernan, Consultant and Head of International Family Law, Thomas Mansfield Solicitors: tmfamilylaw.co.uk