‘The Secret Barrister’ has brought a number of failings of the Criminal Court to the public’s awareness. So what happens if we place the same critical lens on the Family Courts? For many individuals who find themselves caught up in Family Law proceedings, this is often the first contact they’ve had with any court room. I’ve been asked by those seeking ad hoc advice to try and save the costs of full legal representation – ‘How am I meant to prepare myself when there’s no where to go to learn what to expect?’ Then, in the midst of proceedings, they – and indeed those who are legally represented – are faced with the harsh reality that our Family Courts truly are failing us.
Once an application is sent off to the Court, we as Family Law professionals, seek to reassure our clients and update them on progress as we go along. For the Court to give us information on the progress of an application, we as a firm have to be ‘on the Court record’. If the other side file an application and fail to name us within it, we have to file a ‘Notice of Acting’ to be put on the record. After filing a Notice of Acting, I have been told that the Court currently has a one-month backlog for dealing with any correspondence. This means that I have to wait a whole month before the court will liaise with me making it impossible for me to be able to keep clients up to date in the meantime. It’s been suggested to me that I could mark correspondence ‘Urgent’ to speed up this process. This is morally unappealing because the matter often isn’t urgent relatively speaking and by marking it so, all I am doing is creating further backlog for other cases.
The Family Law Rules provide that the Court should encourage parties to reach an agreement at every stage of proceedings. The delays in processing correspondence mean that the Courts are frequently failing to adhere to this. Where a date has been fixed for a hearing but parties reach an agreement, we would write to the Court informing them of such and asking them to vacate the hearing. The fact that what I consider to be an administrative task is reserved only for Judges, means that such applications have to be heard in breaks between hearings. On occasions, hearings have not been able to be vacated in time despite parties reaching an agreement, meaning that unnecessary costs are incurred, judicial time is wasted and our over congested Courts are not freed up for more important matters. This hardly offers parties an incentive to negotiate. Whilst the Courts consider to suffer from a shortage of judiciary, this is something which is likely to continue to happen. What is senseless to me is that Court staff will not chase Judges, meaning our clients are often left in a limbo and unable to move on with their lives.
Furthermore, sometimes due to lack of resources Court hearings are cancelled by the Court at the last minute. Causing significant delay, it can often be months until the hearing is relisted to be heard, again leaving clients in limbo. Not only does this cause delay but also significant financial hardship as clients will often have already incurred legal costs and barrister’s fees in preparation for the hearing.
The Rise in Litigants in Person
We frequently receive calls from individuals in financial hardship who nevertheless, since the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [LAPSO], are not eligible for legal aid. Legal aid in family cases is now only available where there is a history of domestic violence or where a child is at immediate risk of harm and even then it is means tested.
The Courts have made some efforts to simplify processes for litigants in person. This is arguably not enough as it ignores the reason why we have lawyers in the first place. Too frequently, Judges are unashamedly admitting that they haven’t had the time to read the documents solicitors have taken hours to prepare, meaning that it is ever more important for individuals to have strong representation in court as this may be all a case hangs on. Matthew Richardson, a barrister at Coram Chambers has commented, the government is ‘building a system of justice that relies upon people representing themselves overlooks the inherent fact that it punishes people who are less able to litigate, rather than whose case is less deserving. Furthermore, responsibility falls on the judiciary to assist and guide litigants in person through the process and consequently, cases take longer and cost more for the other side who, even if they are not the applicant, bear the responsibility of preparing the bundle’.
The rise of litigants in person due to legal aid cuts, means that less people are being sign-posted towards Mediation Information and Assessment Meetings [MIAMs]. Before the LAPSO came into force, 80% of publicly funded MIAMs were referred to the mediator by their publically funded solicitor. After the implementation of LAPSO, those referrals only account for 10%. In addition to this, there is simply not enough publically funded MIAMs ‘full stop’, again demonstrating the government’s false economy as these cases instead end up in our Courts.
The more suitable cases that can be channelled into mediation, the fewer unnecessary cases will be sent to court, freeing up time and money for the cases where Court proceedings are the only option. I can’t help but feel that despite government led mediation initiatives, mediation isn’t being given a proper chance. In mediation, parties learn how to come to an agreement and can move forward equipped with those tools whereas they don’t learn anything from court. As soon as they hit another hurdle in parenting, they may simply end up back in Court.
Its not only the Courts themselves who are overstretched but other public bodies which form an integral part of the system. I’ve witnessed social workers who are clearly expert in care proceedings, forced to jump in and do private children proceedings. Juggling multiple cases at a time, the distinction between the public and private law tests can be lost. Additionally, social workers are forced to become over reliant of templates which are not fit for purpose. This is particularly dangerous given the Court’s general reluctance to challenge the recommendations of such professionals.
In addition to this, with CAFCASS understaffed, cases are often bounced between CAFCASS, a government body, and NYAS, a charity. It’s often left up to the cusp as to whether someone will be present at the hearing, again leading to wasted time and money with hearings having to be cancelled last minute. Also overburdened, NYAS are often unprepared because they are not able to undertake work until funding has been secured. Due to lack of administrative staff, this is something which may not be done until it is too late. It’s admirable that charities like NYAS exist, but there is a danger in allowing the government to expect that it’s work will be picked up by them.
In conclusion, like so many public sectors, the Family Justice System has suffered fierce cuts by government in recent years. This has lead to poor administration due to lack of resources, a shortage of judiciary, and a rise in litigants in person. In many ways, all the government has created is a false economy as increased numbers of litigants in person has lead to an increase in the workload of the judiciary. In today’s economic climate, it is important for Judges to be weary of the fact that other professions are also under strain and be prepared to challenge the basis of their recommendations. Could some of the many failings in the Family Courts be addressed by 1. transferring the administrative tasks from the judiciary to properly trained admin teams and 2. ensuring that cases which don’t need to be in Court don’t end up there through non court based dispute resolution initiatives such as mediation, the collaborative process or arbitration?