The Family Court today – A view from the President’s Chambers

February 5, 2019

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On 24th January 2019, the President of the Family Division the Rt. Hon. Sir Andrew McFarlane released his first ‘View’ of the situation in the Family Court and what is being done to address the problems faced by those who work in the family justice system.

A system at the point of change

Seen as the ‘Number One Priority’ is the need to address the “unprecedented and unsustainable volume of cases in the system”. In particular, not only has there been an increase in the number of private law cases relating to children, but the number of cases where there are Litigants in Person is on the rise. Both present significant challenges and implications in their own right.

The President comments on the extraordinary commitment and effort of those working within the system, from Judges to Clerks to staff and that aligns with our experience – of decent people honestly trying to do their best in impossible circumstances: with too much work and too little back-up and support. There is a point at which their just pushing themselves harder to fill the gap creates burn-out rather than helping to relieve an immediate pressure: longer-term solutions are needed.

In order to better understand the problems that exist, a Public Law Working Group, Private Law Working Group and Experts Working Group will be convened with final reports and proposals for change produced by Easter 2019. Once in receipt of the final reports, the President proposes to “flesh out the detail of any proposes changes in procedure and practice … prior to wider consultation and implementation as soon as possible thereafter.” The wheels are in motion therefore but it could be some time before we see actual change.

The knock-on effect

Undoubtedly, the knock-on effect for those individuals party to family proceedings in the current climate is delay and cost (emotional and financial) not to mention the stress involved in proceedings and uncertainty of outcome. The situation is made worse if the parties are unrepresented, having to attend court without the benefit of legal support.

The President also notes the knock-on effect on professionals engaged in work in the Family Courts, highlighting his concern for the well-being of social workers, lawyers, judges and court staff who are, put simply, just trying to do their job in less than ideal circumstances. The President acknowledges that there is little that he can do to relieve the current pressure but states that, “In these highly pressured times, I think that it is neither necessary nor healthy for the courts and the professionals to attempt to undertake ‘business as usual’.” The result is that “for the time being, some corners may have to be cut and some time-limits exceeded…”. This seems quite extraordinary when considering the life-changing matters at hand which inevitably come before the family courts. The President comments however that “to attempt to do otherwise in a situation where the pressure is sustained, remorseless and relentless, is to risk the burn-out of key and valued individuals in a system which is already sparely manned in terms of lawyers, court staff and judges” – a worrying sentiment indeed.

The President states that “My aim in now saying what I have is to give each of you… ‘permission’ to have a sensible discussion with each other and establish a dialogue between local professionals and the local judiciary in order to develop sensible parameters and guidelines on what can, and what should not, be expected from those appearing before and working in the courts.”

In order to ease pressures, the President encourages, as part of this dialogue, to determine some parameters (for the next 6 months or so) to be agreed such as:

  • The earliest and latest time when the court can be reasonably expected to sit
  • The earliest and latest time during the day when it is acceptable to send an email to another lawyer in the case or to the court
  • Reducing the components to be expected in a Position Statement on the basis that it can be expanded upon orally in court if required

James Pirrie a director at Family Law in Partnership comments, “The issues that clients take before our family law courts are the most important/life-changing issues that they will face in their lives. Our culture leads us to expect x-ray vision insight, laser-finding of truth and magical wisdom in the imposed outcome.  The pressures now faced by the courts must remind us all that little of this is possible where the lists are overstuffed, other cases are waiting and there is little time for our judges to prepare. It emphasises the importance of finding good enough solutions where possible, adopting out-of-court approaches where appropriate and impeccable case-presentation to ease our clients’ preferred solutions across the line.”

David Allison a director of Family Law in Partnership further comments, “At Family Law in Partnership we have always strived to find solutions for clients that avoid the financial and emotional costs of court proceedings whether that is through mediation, collaborative law, round table discussions or arbitration. With the present state of the courts, the need for innovative and client focused solutions, is increasingly important. If there is anything positive to come from the awful situation clients now face in court it must be that other firms will increasingly adopt the Family Law in Partnership model to achieve the best outcome for their clients”. 

For more information or to discuss how we can help you, please contact any of our experienced divorce and family lawyers on 020 7420 5000 or email us at hello@flip.co.uk . Please also see our dedicated webpage outlining the various process options available to clients.