Increased case disposals in family courts signal positive shift

The most recent Ministry of Justice (MoJ) family court statistics for the period April-June 2024 show an increase in ‘disposal events’ for both financial cases (up 20 percent) and private children cases (up 17 percent) compared to the same period last year when a similar number of applications were made. A logical interpretation is that this means more cases have therefore been settling or reaching final determination by a judge.

It is clearly good news that more families are reaching final outcomes more quickly. This clarity about financial positions or arrangements for children should hopefully help them move on to the next chapter of their lives.

What we cannot say, however, is whether this trend shows increased court efficiency or is due to other factors - for example, improved confidence in the economy encouraging more settlements or perhaps, by contrast, exasperation at prolonged financial uncertainty or litigants running out of funds being forced to settle.

Court challenges

The family court system has been devastated by the removal of legal aid funding for almost all cases and a lack of investment in the decade since then. Unfortunately, alongside court delays, the list of health warnings that family lawyers must give to clients who are starting proceedings is growing longer. These include:

• We don’t know when the first hearing will be.
• We don’t know who your judge will be or if you’ll even get a judge.
• If you do get a judge, we can’t promise they will have read anything.
• The hearing may not start on time; it may not last the time estimate; it may not conclude within the time estimate.
• We can’t promise you a private waiting area, even if we’ve requested special measures.
• It is possible the press might be there.
• No, we can’t promise you the same judge next time.

Unfortunately, a speedier disposal of cases will do little to change these issues for court users unless accompanied by significant investment in a court system that has already reached breaking point.

Carrots and sticks

Interestingly, the MoJ statistics also show a significant decrease for the quarter in the number of separating couples starting a financial court process (down 12 percent in Q2 compared to Q1 2024). This may be a direct result of new rules, introduced in April 2024, which widened the definition of non-court dispute resolution (NCDR) and encouraged, in the strongest terms, people to resolve their disputes away from the court.

NCDR has been advocated for many years because of the benefits for families coupled with the obvious advantages for an overloaded court system.

Family court judges have been empowered by procedural changes to consider “any failure by a party, without good reason, to attend non-court dispute resolution” when deciding whether or not to make costs orders. Litigants and their lawyers can no longer ignore NCDR and they risk being penalised for wilful blindness.

Furthermore, changes to the Civil Procedure Rules (CPR) 1998 that came into effect on 1 October 2024, give judges in other family proceedings (e.g. Schedule 1 cases, interim applications or appeals) and claims under the Trusts of Land and Appointment of Trustees Act 1996 and the Inheritance (Provision for Family and Dependants) Act 1975 an express power to “order the parties to engage in alternative dispute resolution” and again to take any unreasonable failure to engage into account in costs decisions.

Those with eagle eyes will spot the distinction between “attend” and “engage in”. Most divorcing litigants will still only need to demonstrate attendance at some form of NCDR, most likely at a Mediation Information and Assessment Meeting (MIAM), while in CPR cases litigants will now have a higher burden and will need to be prepared to demonstrate how hard they actually tried at NCDR. This will inevitably create arguments about the boundaries of without prejudice privilege, both in a mediation context and in solicitor correspondence.

This push towards NCDR is coupled with the recent introduction of higher standards for those conducting MIAMs so that this becomes a true gateway meeting offering information about all types of NCDR, not just mediation.

Resolving matters away from court

The gamut of NCDR options families might consider include mediation, collaborative law, early neutral evaluation, solicitor negotiations and arbitration.

NCDR options offer separating families privacy and can be quicker and more empowering than having an unwelcome court judgment imposed upon them.

Family lawyers are now becoming more creative about tailoring the route chosen to meet the clients’ combined objectives. The highly discretionary nature of English family law means that we can be faced with two reasonable clients, stuck at either ends of the brackets of what constitutes a fair outcome, based on legal advice they have received from sensible lawyers. Working out how best to bridge the gap is essential.

For example, early neutral evaluation doesn’t need to mean an adversarial court-room set-up with barristers on both sides. It could involve a jointly instructed lawyer joining a mediation process or a round table meeting with solicitors, to explain their view on the likely outcome, on a without prejudice basis. This can be quicker, cheaper and less likely to entrench positions.

Hearing a neutral third party’s indication can focus minds, but obviously doesn’t guarantee a resolution. Instead some couples benefit from arbitration, either as a pre-agreed next step, or as the initial process itself, so that they have the certainty of a final decision being made.

The future of NCDR

We all know that litigation generates huge fees and have read countless judgments lamenting both the financial impact this has on separating families and the emotional impact of an adversarial process, particularly on the children caught in the crossfire.

Some litigation will continue to be unavoidable, for example in cases involving financial non-disclosure or domestic abuse. But the rise of NCDR will not de-value the advice of specialist family lawyers. Instead, we will need to be prepared to demonstrate to our clients exactly how and when we can best add value to each process.

New legal technology is inevitably going to replace some elements of “legal work”, but family lawyers shouldn’t feel threatened by clients seeking to resolve family issues outside of court. Advice and guidance from experienced, emotionally intelligent humans remains fundamental to resolving these inherently human disputes. Family law teams will simply need to become more agile and able to adapt their approaches to balance the varying objectives of individual clients, whether their priorities involve maintaining privacy, minimising costs, achieving finality or preserving parenting relationships.

As more clients, and not just the (ultra) high net worth ones, choose to ‘go private,’ this should also free up an over-burdened court system for the people who need it most and mean precious public resources can be put towards new family-focused options such as the problem-solving ‘Pathfinder’ courts that are being piloted for private children cases.

The MOJ family court statistics are therefore worth watching in quarters to come to see if the new NCDR rules are having a real effect. Hopefully, the latest figures are a sign of a positive trend to come for both the family court and separating couples.