Family courts unravelled: Courts in chaos?
28 November 2017
The Law Society
Earlier this year, the Law Society’s Family Law Section asked its members to recount experiences that they have had in the family courts. In doing so, we unravelled the extent of dealings with counsel’s chambers, fees charged by counsel when matters were taken out of the list by the court at the last minute, and chambers’ deemed dates for due fees.
It is emphasised that there was no bias toward negative results. In fact, some positive stories emerged too but these were far outweighed by less complimentary ones. The responses to the survey proved to be rather enlightening.
The data, although not quite as extensive as the Paradise Papers, is still being analysed but it was felt that it might be useful to give a preliminary outline of the concerns which have been highlighted. This was not intended to be a scientifically structured survey. It is hoped however, that what has been uncovered may be of interest to a wider audience of family professionals and will add to the discussions about court modernisation, not to mention the much greater scope for clients and practitioners alike to adopt family arbitration.
A number of respondents had experienced the court adjourning, of its own volition, a hearing with only 24 hours’ notice. Some people reported this happening on numerous occasions.
Reasons included an apparent lack of judicial time, owing to double, or even multiple listings of matters.
The impact of this on clients includes:
• Increase in costs for the client by at least £1000 - £3000.
• Losing appointed counsel due to lack of counsel’s availability on the relisted date.
• Increased levels of stress for those who had to prepare emotionally as well as practically by taking time off work and arranging child care.
• Depletion of assets in the case due to increased costs.
• Delays resulting in more entrenched party positions that were not amicably resolved.
• Being informed at very short notice that the judge was unable do final hearings and that a replacement was unavailable, therefore having to rely on own solicitor knowing opposing solicitor well enough to hold a four-way roundtable for negotiation on day one of the final hearing, fortunately resulting in settlements by agreement.
• Waiting another six months for a court hearing date after having waited six months for the first one.
• Paying fess to counsel for late cancellation and incurring additional costs over the delay.
• Re-preparing for trial.
• Dealing with client being “locked in” the family home with spouse as a result of delays.
• Loss of client’s job after having taken too much time off.
• Incurring a brief fee and delay of several months for a new date before being notified of a three-day final financial provision hearing only for the court to phone at 3 pm on the day before to say no judge was available.
Late adjournments do occur where a children matter is given priority over a financial one. However, respondents also reported the court adjourning Children Act matters, including public law cases:
• Significant delays to decisions being made about whether a child should be removed from a parent’s care.
• Clients not being able to attend the adjourned hearing listed without consultation on availability.
• Delays to proceedings resulting in delay to resolution for the subject children.
• Delayed resolution of a case involving a vulnerable teenager Significant frustration for a client who was unable to see their child in the interim. • A loss of fees
• Being too late to get an alternative court hearing.
• Loss of time spent on the case.
Communication with the court
Getting through on the telephone to the Bury St Edmunds Divorce Centre (BSE) has involved some being on hold for a very long time. After its launch, BSE brought in an automatic email reply system, updated daily, in an effort to reduce the number of calls it might get.
A respondent reported that a court they use regularly has staff who insist that they will simply put their letter on the file itself, which may require taking a matter out of the list owing to agreement, and leaving it to the judge to deal with at the hearing itself. It would be a more accurate daily list if such matters were to be taken out before the day. Strictly, of course, the parties and their legal representatives are required to attend unless told otherwise by the court.
A suggestion made by the court local to my firm is that the date and time of a hearing and the case number should be included in the subject of emails sent to the court, instead of being placed in the body of the message or within any attachments. This is something my firm has been doing as a matter of course, making it easier for court staff to prioritise emails.
When asked how long they had to wait to hear from the court, responses included:
• It depends on whether it is a private or public law case. Responses are quicker for public law
• On average, four to six weeks.
• Three weeks for routine matters. We have to chase if it’s for anything specific; a recent example of this: there was a case where we had cross-petitions. It was quite clear no one had a clue about what to do or how to deal with this on a procedural basis.
• Six to eight weeks is usual and only then after vast chasing • In one case, four months to issue an application despite chasing
• The worst was about three months for getting a date for an urgent application in the CFC.
• Routine letters can take many weeks, over a month, and many phone calls. Different courts have different approaches. Presented with a Form A for issue, including an application for maintenance pending suit, some will not list it separately. Some appear not to acknowledge or respond to written complaints, or fail to deal with them effectively if they do.
Positive experiences with the courts
The survey asked about positive experiences too. These included:
• Our local staff and judges are very friendly and helpful. • Staff are aware of the issues we face.
• Court staff are doing their best to assist without the resources to do so. • Judges are starting to recognise the admin burden the court is under, so in some instances they circumvent this and self-list. This is a good practise as it means parties leave court knowing the date of the next hearing and there is no need for further correspondence to ensure a hearing is listed in accordance with dates to avoid.
• Experienced district judges run cases very well, incomparable to most magistrates’ hearings.
• Our local courts are pretty good; we can communicate with judges directly which helps.
It is hoped that the information revealed by the survey promotes a broader discussion which will lead to making improvements to the court system. Nevertheless, it is submitted that greater use of family arbitration would avoid so many of the difficulties respondents encountered. Its advantages include speed, flexibility and confidentiality. The parties can pick their arbitrator, how the arbitration proceeds and when. There is no court-imposed timetable: the parties avoid any delays within the court process. There is even potential flexibility about the procedure followed, and the scope of the arbitration itself. As a result, family law arbitration can have significant costs advantages.
Back to the court framework and divorce centres.As at 27 November 2017, BSE said that its current work position was as follows:
Our current work position is
• We are currently processing petitions received on 16 November 2017 • We are currently processing Acknowledgement of Service received on 14 November 2017
• We are currently processing applications for Decree Nisi received on 15 November 2017
• We are currently processing correspondence and emails received on 13 November 2017
• We are currently processing Form A's received on 15 November 2017 • We are currently processing Consent order applications received on 15 November 2017
• We are currently processing Decree Absolutes received on 27 November 2017
• The Judiciary are currently processing applications for Decree Nisi received on 5 November 2017. The answer to these applications will be processed by the admin team in approximately 15 days. If the application is granted a pronouncement date will be set for a further 4-5 weeks on from processing.
• The Judiciary are currently processing applications and correspondence received on 5 November 2017. The answer to these will be processed by the admin team in approximately 15 days
Things can change very quickly, as demonstrated by the impact on BSE after a positive article on its efficiency was published last year by a solicitor. At risk of prompting a further similar deluge for BSE, my firm has just received a decree absolute from this divorce centre turned around in a day.
So how can a busy family law solicitor run a client’s case efficiently and speedily faced with the responses received to this survey? The only sure way of avoiding these difficulties in the court system is to avoid court altogether. The highlighted problems are a great advertisement for non-court dispute resolution, notably family arbitration for financial matters and private children disputes.