In 2019, Sir Andrew McFarlane, president of the family division, said that the family courts are having to “run up a down escalator” as he described the increasing pressure on the system. More than three years on, not only has there been no improvement, but the situation has deteriorated significantly.
New statistics published by HM Courts & Tribunal Service (HMCTS) show there is currently a backlog of over 110,000 open cases within the family courts. In July to September 2022, it took on average 43 weeks for private law cases to reach a final order. This is up five weeks from the same period in 2021, and up 15 weeks from pre-pandemic levels. In the same period, public law cases (which should not exceed 26 weeks unless absolutely necessary) took on average 45 weeks to reach a final order. As Lubna Shuja, president of the Law Society, has noted: “The ones who are impacted by this delay the most are families up and down the country. Some are dealing with deeply distressing issues – securing a child arrangement order, seeking protection from domestic abuse and controlling behaviour, or finalising a divorce.”
Unacceptable timeframes
In my work at Coram's Child Law Advice Service, I often dealt with parents reporting a two- or three-month gap between scheduled hearings but recently we're advising on more and more cases where there is a gap of more than six months. These timeframes are unacceptable, particularly for children. In the case of one family I worked with, the court did not make an interim order for a father to have contact with his child at the first hearing, and the second hearing did not take place until nine months later. During this time, the mother did not agree to facilitate contact informally and so the child went nine months without seeing their father.
The impact of Covid-19 may have been the tipping point but the causes of the backlog and delays in the family court system run much deeper and certainly pre-date the pandemic. Factors include:
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1. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which came into force in April 2013, removed many family cases from the scope of legal aid. This has led to a huge increase in litigants in person (LiP), individuals who have to go to court without legal representation from a solicitor or barrister. This inevitably causes delays as LiPs require more time and support as they are not familiar with the legal process as well as their legal position. Coram's Child Law Advice Service has an advice page for LiPs and signposts guidance for lawyers who face LiPs.
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2. There is a lack of judicial availability with not enough judges recruited and trained to assist in relieving the burden on the family court system.
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3. The family court should be viewed as an option of last resort, however in practice, this is not always the case. There are various non-court dispute resolution options available including mediation, arbitration, collaboration and round-table discussions. If non-court dispute resolution options were used appropriately this would reduce the number of cases in court. This sentiment was echoed by McFarlane in October 2021: “It is my very firm view that far too many families simply turn to the court rather than seek less harmful, swifter, cheaper and potentially more enduring ways of resolving their disputes.”
The Law Society recently published a five-point plan to help the government resolve the “chaos” in the courts. While these points are not family court specific, the same principles apply. Having surveyed more than 500 solicitors about their day-to-day experiences in courts and tribunals, the Law Society is calling on the government to:
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Invest in buildings, staff and judges so that courtrooms can be run to their full capacity.
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Properly fund legal aid – without remunerating solicitors properly, there will never be enough legal aid firms to handle cases.
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Fund legal aid for early advice and make more people eligible for it. Civil claimants can speak to a lawyer who will be able to direct them to alternative remedies, like mediation. This will save court time for the most complex and intractable cases.
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Boost the use of technology to drive efficiency in the courts, saving time for lawyers and judges.
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Collect better data – better data is needed on the effect of remote hearings and the experience of claimants who represent themselves. Without this data, policy is being made in the dark.
The government has recently committed to a review of the civil legal aid market which will look at how legal aid is accessed and delivered across England and Wales and explore options for improving the sustainability of the system for people facing civil and family legal issues.
A consultation will open this year and the final report is due to be published in 2024. While a comprehensive review is important, there does not seem to be any plan to take action in the short term to address the spiralling delays.
Uncertainty remains across the sector about how bleak the situation will be by the time reforms are implemented following the outcome of the report.
