Family Courts have their hands full post-lockdown

  • Posted

The Family Courts, which were already under pressure before lockdown, are trying to keep up with an unprecedented increase in workload, with a substantial 66,357 cases commencing between April and June 2021, a rise of 14% when compared to the corresponding quarter the previous year. A breakdown of the figures highlights increases in Children Act private law (11%), divorce (7%), financial remedy (72%), adoption (27%), and deprivation of liberty (51%). There has also been an increase of 61% in Lasting Power of Attorney registrations.

Inevitably, this has placed pressure on Judges and Court staff to meet the workload, and greater delays in having hearings listed should be expected. To illustrate, the average time for a care and supervision case to reach the Court is at its highest average since 2012, having increased from 36 to 44 weeks for the April-June quarter compared to the same period last year. Around 1 in 5 of care proceedings concluded within the statutory 26-week time limit, an 11% drop from last year, and the lowest level since 2012. Between April and June 2021, it took on average 41 weeks for private law cases to reach a final order, up 13 weeks from the same period last year.

Given that this can already be a stressful time for many Applicants, and delays in reaching Court are likely to raise existing tensions, what are the other forms of dispute resolution (DR) that clients could consider?

Mediation

Mediation involves the relevant parties, with the assistance of a neutral mediator, identifying and discussing the issues in dispute. Options for resolution are explored and attempts made to achieve a consensual agreement. Generally, the mediator does not provide their opinion on the situation. If the case still necessitates Court involvement, the Judge may look favourably upon those who have demonstrated their willingness to mediate, and Court Rules now require private children and matrimonial financial cases to show that they have attempted to address their problems by mediation before cases can be issued.

Arbitration

Arbitration can be used to determine matters regarding child custody and access, and division of assets with the agreement of both parties. The process involves an independent arbitrator deciding and finalising the dispute in the same way a Judge would. The outcome of this is binding on both parties.

Collaborative law

Each party instructs a collaboratively trained lawyer who then discuss the dispute. Both parties remain present, alongside their lawyers who provide ongoing support and advice. Depending on the subject matter, access to assistance from professional individuals can also be sought, such as a child specialist or an accountant/financial adviser or tax or pensions specialists. Often, there are four meetings in which parties are invited to put forward their concerns and positions. In the final meeting, any agreements reached are signed and methods of implementation considered.

What are the benefits of DR?

  • Flexibility – DR provides the parties with a greater chance of the agreement reflecting both parties’ needs and wishes, whereas a decision made within Court proceedings may be bound by the rigid constraints of the law. An outcome from DR may not necessarily be achievable through the Courts.
  • Saving time and costs – Engaging in DR can reduce the costs incurred in legal proceedings and reduce what is currently a lengthy wait for Court hearings to be listed. The timescales for DR appointments are usually much shorter than Court hearings. In the interim, this may also increase chances of disputes being resolved.
  • Increased chances of success without settlement – Even if an agreement cannot be reached, DR may narrow the issues in dispute and allow both parties to evaluate the merits of their case.
  • Less stress – As DR procedures are more informal than Court proceedings, this may provide a less confrontational environment at a time when parties are already emotionally fuelled.

Overall, DR methods should be considered where parties feel there is room for negotiation and a solution may be reached through discussion. Involving an impartial third party can provide a new perspective on the issues in dispute and help navigate towards a solution.