The Law Society surveyed over 500 solicitors practising in all different areas of law about their day-to-day experiences, and the results were depressingly familiar. The cited issues included lack of privacy for clients, including lack of private rooms and soundproofing, not enough Courts, Judges or staff, lack of refreshment facilities and overall lack of maintenance to infrastructure. At a time when practitioners are increasingly being encouraged by the Courts to rely on technology even just to start proceedings, the unreliable Wi-Fi and connections, glitches in video conferencing platforms and buildings that had seen better days in the late 1990s all came in for criticism. Family practitioners will sigh knowingly on seeing that the Central Family Court makes the top 5 most mentioned Courts in the responses.
Having taken all the data, The Law Society have made 5 recommendations to the Government. Whilst basic, these echo what practitioners throughout the legal world have been saying for a number of years now.
First, they have called on the Government to invest in buildings, staff and Judges. Investing in repairs means that Courtrooms can be run efficiently and to their full capacity, which will reduce the backlog of approximately 63,000 cases at present.
Second, there is a call to properly fund legal aid. While this applies mainly to criminal cases at present, the cuts to legal aid in family cases have led to a massive upsurge in litigants in person in the Family Courts, which leads to knock-on delays in cases progressing.
Third was a call to properly fund legal aid for early advice, meaning that potential applicants can speak to a lawyer, who can direct them to alternative remedies such as mediation. The Court has already started to encourage alternative forms of dispute resolution in family case, for example, making at least speaking to a mediator mandatory on issuing proceedings relating to children or a financial application on divorce. More is likely to come on this.
Fourth, it is proposed that the Court should seek to ensure reliable technology. Clearly there is going to be greater efficiency and more “joined up thinking” if there can be reliable technology. However, as The Law Society rightly says, running out unfinished or untested software only leads to further delay and costs. Creating a brand new portal for the Family Court, rather than looking at what had been done in civil matters previously, is a prime example. Family practitioners are often faced with the left hand of the portal not knowing what the right hand of the physical Court is doing and vice versa, and unreliable technology that has not been designed to take into account the idiosyncrasies of family law.
Finally, The Law Society recommends that better data be collected with regard to the effect of remote hearings and the experience of people who represent themselves. Without this, policies are being made in the dark and in ignorance of what is happening on the ground. Better data, therefore, should help show where investment is needed and what changes are actually working.
It is a grim portrait of the legal system, and one which family lawyers have been working through for a number of years.
What then can be done about it on a day-to-day basis?
As The Law Society flagged in their third point, it has become increasingly usual in the last 5 to 10 years in family cases to move hearings outside the Courtroom. Structured negotiations such as three room meetings have always been an option, but are even more popular now when the delay and cost of a Court hearing − aside from the uncertainty of the actual outcome of any Judgment − is becoming too great a risk to take. The rise and rise of the Private FDR − i.e. a “Without Prejudice” hearing in front of an agreed Judge (usually a retired Judge or barrister), to provide a neutral evaluation to encourage the parties to negotiate and settle − is well known to family lawyers, and something that should be considered at all stages. Paying for a chosen Judge to hear only your case for a day is a far better experience than sitting at Court, waiting to see a Judge with 5 other cases that day, who may not be a financial specialist in any event. If there is a sticking point in a case, an early neutral evaluation can help manage the parties’ expectations of any final outcome, and move the case forward more quickly.
Similarly, arbitration is an option that many people are looking to explore, particularly given recent cases that have clarified the binding nature of the arbitration process and its outcome. Given the element of control that arbitration gives the parties over the process, the ability to choose the arbitrator, where the hearing will be dealt with and the issues that will be dealt with, more and more people are turning to alternative dispute resolution as a way of taking control of their case, without relying on a crumbling Court system.
It remains to be seen whether the Government will heed The Law Society’s recommendations, although given that the same warnings have been put forward for a number of years now, it is sadly unlikely. In these circumstances, is it any wonder that litigants (particularly in the Family Courts) are increasingly turning to alternative methods to resolve their disputes and moving on with their lives?