Are Family Law Courts and Associated Bodies Working to their Limits?

Scarcely a week goes by when a solicitor has clients unaffected by the impact on the courts and public services regarding cuts and COVID-19. Sir Andrew McFarlane, President of the Family Division, commented back in March that the family law courts and associated bodies were working at the limit of their capacity. His concerns were reiterated and emphasized on 24 July when the President urged separating families to resolve their disputes elsewhere, rather than through the courts.

This is something family law solicitors largely strive for and have done so long before the present public health and economic situation, but we can only work within the boundaries presented by our clients who, in turn, are often affected by social and economic factors that further limit their choices.

These constraints could be said to fall under two headings, although they are by no means mutually exclusive:

Social Factors

  • There was a time not so long ago when (for example in North Shropshire) funding was available for specialist domestic abuse workers to go into schools and work with even the youngest children, in an age-appropriate way, to develop an understanding of healthy, respectful relationships. That funding has disappeared.
  • It remains apparent that girls and young women remain prone to messaging and factors that foster a sense of being undervalued – such as period poverty, revenge porn and body-shaming – which go on to affect how they participate in relationships. 
  • Despite the great work being done by many organisations to de-stigmatise mental health issues in young men, the “big boys don’t cry” message impacts negatively on how some men may feel about expressing their emotions in a healthy way when relationship issues arise.

Financial Factors

  • Under-funded agencies are simply not able to offer the interventions needed for families having difficulties, in a timely fashion or at all. The President himself recently compared family law cases to bread dough which continues to grow and feed upon itself, even when it is left on the shelf to prove. When a case is ongoing and itself subject to delays there can be further difficulties in accessing assistance from other agencies, relatively minor issues at the outset of a case can become explosive. One example of this is the withdrawal of the Domestic Abuse Perpetrator Programme, which was previously available at no cost, if ordered by the court.
  • Private providers such as counsellors and therapists exist but, with the best will in the world, they are simply not accessible to many families, financially or geographically, especially in rural areas where financial poverty is compounded by poverty of basic services, lack of public transport, etc. 
  • Legal aid is still available for family law cases where a person qualifies financially and can prove the existence of domestic abuse. The emphasis on proving domestic abuse can shift the focus unhealthily so that behaviours which, whilst unacceptable, were not “deal-breakers”, must necessarily be pushed to the forefront and assume a level of importance that detracts from other issues within the case. Having qualified for legal aid the person is then under financial pressure from the Legal Aid Agency to bring the case to court, or risk running out of funding.
  • Mediation can be carried out under legal aid without needing to prove domestic abuse, and there is also some government funding available for mediation on children issues where a person cannot access legal aid. However, a mediated agreement may still need to be put before the court for approval, and will go through the same process as contested cases at the outset, adding to the backlog.
  • Where resources are tight, and the other party in a case is not able (perhaps for one of the social factors set out above) to engage constructively in negotiations, then the solicitor may feel that an application to court is the only way of achieving some sort of timetable and “end-date” enabling the client to have a broad indication of what the case might cost.

It is worth mentioning ADR (Alternative Dispute Resolution) at this stage which, whilst not an outright solution to the financial issues, since it must still be paid for, can give people a good deal more certainty and control over the situation than they might have through the courts. However, since it is largely voluntary it still relies on a degree of goodwill and cooperation from both parties. 

The President’s observation is entirely correct and a reduction in the number of matters coming before the court is something we need to aspire to. However, the court service is merely a cog in a large wheel designed to move society forward, and unless there is concerted and joined-up Governmental effort to tighten the other cogs (through availability of vital services and a cultural shift starting with very young people), then the wheel will simply fall off altogether.