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How Can Families Escape a Crumbling Court System?

View profile for Jonathan Whettingsteel
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How Can Families Escape a Crumbling Court System?

Last month, the Evening Standard revealed shocking statistics of parental abduction in England. At least 925 children were abducted by one of their parents between 2019 and 2023, and 232 reports have been made to police in the past year (a 12% increase since 2019). In this article, Head of Family at Dutton Gregory Solicitors, Jonathan Whettingsteel asks why parents are desperately taking matters into their own hands.

In short, the court process is collapsing.

The statistics uncovered by the Evening Standard are obviously a result of private law family cases taking an average of 45 weeks to conclude in 2023 - a 66.7% increase from 2019. There is, of course, the impact of the COVID-19 pandemic, but is the court system still playing catch up two years later?

During a lecture given at the University of Worchester in October 2022, the President of the Family Division, Sir Andrew McFarlane said that the Family Courts of England and Wales were dealing with 80,000 outstanding cases in only 42 court centres.

So with the family court system is crumbling, (and in the case of the ceiling in one court I attended recently, literally!) under the current strain, what is the solution?

There is a continuing push to resolve matters outside of court. The Government has extended its Mediation Voucher Scheme to April 2025, but as the numbers of court proceedings go up, those for mediations go down, plummeting from 13,609 in 2012/2013 by almost half to 7,344, in 2022/2023.

It cannot be a coincidence that the dramatic reduction in mediation referrals coincides with the Legal Aid Sentencing Punishment of Offenders Act, which slashed Legal Aid, so a large number of couples are no longer eligible for funds to meet solicitor’s costs. This lack of representation and advice, and increased number of litigants in person, means more parties are going to court before looking at alternative methods of dispute resolution.

Statistics suggest that access to solicitors actually results in more referrals to mediation and less applications to the courts.

There is also an increase in the number of cases that return to court. Research from the Nuffield Family Justice Observatory in their 2021 report, ‘Uncovering Private Family Law: Who’s coming to court in England’ suggested one third of family cases return to court with a second application.

So if mediation isn’t the solution then what other options are there?

  • Arbitration – Since 18th July 2016 the voluntary Family Law Arbitration Children Scheme has allowed parties to arbitrate in respect of children disputes.
  • Collaborative Law – It is believed around 90% of collaborative law cases result in successful outcomes.
  • Resolution Together – Two Parties, One Lawyer – A relatively new option, but within a year 2,102 Resolution members had undertaken the training course.

Due to these options being private arrangements through solicitors, there is no data collected on the number of cases undertaken through these methods of alternative dispute resolution, but if none of these options will work or have been exhausted, and certainly in the cases of child abduction, court is unavoidable.

From 29th April 2024 amendments were made to the Family Procedure Rules requiring parties to set out their position in respect of methods of alternative dispute resolution. It was also indicated that courts are more inclined to make costs orders against parties where they have not actively sought to resolve matters outside of court and complete and file an FM5.

The issue with court isn’t the lack of court buildings, or even their condition, but the lack of Judges to fill the rooms! I often hears anecdotes and tales of courtrooms being vacant and unused.

There has been much discussion around making Family Court proceedings open to the public and media, and whether this will serve as a deterrent to those not wishing to ‘air their dirty laundry in public.’ This was trialled last year in the courts of Leeds, Birmingham and the Central Family Court in London, and on 29th January 2024 was rolled out to 16 more courts across England. Although still in its pilot phase this could become nationwide in due course.

Are there new methods of dispute resolution that need to be considered, or even created? Or what if the mediation voucher scheme was to be extended to cover £500 of legal advice from a solicitor, making it eligible to all? Would this additional cost of legal advice reduce the current delays on the courts and costs in Judicial and court time?

The sad reality is that there doesn’t appear to be any cavalry coming over the hill with a solution to the current overburdened family courts. Government policy and legislation is likely to continue pushing parties into methods of out of court settlement or putting in place consequences to discourage court applications.

It will therefore be left to practitioners, who, as courts are likely to become less accessible and appealing, should be encouraged to think creatively in order to try and find solutions for each client and their individual circumstances.