Record delays in family courts – what other options are there?

The latest statistics from the Ministry of Justice show that disputes regarding the arrangements for children following their parents’ separation are now taking an average of 40 weeks to resolve; a startling rise of 35% compared to the same period 12 months ago (29.9 weeks for cases issued in Q1 2020).

It is easy to attribute blame for the increased delays to the impact of the Covid-19 pandemic. However, the reality is that the family law profession (lawyers and judges alike) have adapted remarkably well following the closure of courts and the suspension of in-person hearings in March 2020.

More than year later, following the easing of lockdown restrictions, most family cases are still routinely heard remotely, via video conferencing. Whilst the professionals working in the family courts may miss the comradery and the ability to discuss cases with their opponents in the corridors of court, it can in fact be far more cost-effective and convenient for clients who no longer have to travel all the way into court, in the knowledge that they may be paying for their lawyers to do the same. Not to mention, the time spent waiting for their case to be heard. Attending court can be intimidating for clients, particularly dealing with sensitive issues regarding the arrangements for their children. Being able to do so from the comfort of their own home is for some, a welcome alternative.

However, there are drawbacks to remote hearings. Whilst straightforward directions hearings and case management conferences can be easily and efficiently dealt with by video link, final hearings and cases involving issues such as allegations of abuse can be much more difficult. There is undoubtedly much that can be lost in attempting to take instructions remotely; for example body language and eye contact can be crucial in understanding a client’s instructions, particularly regarding sensitive issues. Not to mention the ability to comfort a client in distress.

As well as adapting to remote hearings, there has also been an increase in the adoption of alternative methods of resolving disputes regarding the arrangements for children. Many clients are understandably put off by the length of time it can take to progress cases through the courts and turn to mediation or arbitration as a more efficient, and therefore often cheaper means of reaching a resolution.

Mediation can be an attractive option for those wishing to resolve disputes amicably, by agreement with their former partner. There must be an element of goodwill as mediation can be unsuitable in cases where, for example, there is a high level of acrimony or allegations of domestic violence.

Arbitration, on the other hand, is much more akin to court proceedings in that, provided the parties can agree to enter into the process and appoint an agreed arbitrator to determine the dispute, a decision can be imposed on the parties by the arbitrator and that decision is binding. Arbitration is increasing in popularity and is even being used for complex disputes such as the international relocation of children. Following a recent Court of Appeal decision (Haley v Haley [2020] EWCA Civ 1369) it is now possible to appeal an arbitration decision to the court, a decision which may put minds at rest for those concerned that there was no recourse following an unfavourable arbitration award.

The use of these alternative methods of resolving disputes between parents, and the way in which the court itself has adapted to digital technology as a result of the global pandemic, demonstrates the ability of the family law profession to adjust remarkably well to changing times. Whether these changes will prove to be long lasting remains to be seen but it is certainly hoped by family law professionals and their clients alike that the many beneficial changes brought about by the pandemic will not be short lived.

 

Harriet Errington is a Partner at Boodle Hatfield

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