A pilot scheme has been launched at family courts in North Wales and Dorset to test a new approach to dealing with cases involving disputes between parents over arrangements for their children.

The two ‘Pathfinder’ court centres, as they have been dubbed by the President of the Family Division, will trial some of the ideas he set out in a speech he gave last October.

The purpose of the pilots is to assess the use of new practices and procedures to allow for applications by parents in relation to their children to follow a revised court process.

The revised process has a particular focus on improving the experience of the family court and outcomes for survivors of domestic abuse, including children.

The pilots will work by allowing judges to review gathered information and request more documentation before a case gets to court. This is intended to avoid the circumstances of the case being debated in the courtroom, which can often exacerbate conflict between parents.

The pilots will also encourage proceedings to be less adversarial, so that more emphasis can be put into investigating and addressing allegations of domestic abuse and other harmful behaviours, rather than allowing confrontation in the courtroom to take place.

In addition the pilots will boost the voice of children at every stage of the process, ensuring they are listened to and their views are taken into account when decisions are made about their futures. It will see children given more opportunity to explain how they feel and, following a court order, to say whether it is working for them.

A more holistic, multi-agency approach is also planned, with the court engaging and developing positive working relationships with key local partners, such as mediators and local authorities.

Lastly, between three months and a year after a ruling is made, in most cases the courts and the agencies involved will carry out a review to ensure decisions made are working well, including assessing whether court orders are being followed and whether additional support is needed.

Commenting upon the pilots Justice Minister Lord Wolfson QC said:

“This government is doing everything we can to protect victims, make them feel safer, and give them greater confidence in the justice system.

“These pilots will help ensure victims of domestic abuse aren’t further traumatised by the court process and that better decisions are made about their and their children’s lives.”

The pilots are due to run until February 2024. If successful, they could well be rolled out across England and Wales, revolutionising the way in which the courts deal with disputes between parents over arrangements for their children.

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Last week the Ministry of Justice published its latest statistics on the work of the Family Court, for the quarter July to September 2021.

The statistics throw up a number of matters that should be of interest to anyone using the Family Court, including the following:

1. A decrease in the number of cases started in the Family Courts. We are told that in the quarter 63,084 new cases were started, down 11% on the equivalent quarter in 2020. This was due to decreases in all case types: matrimonial/divorce (15%), public law children (14%), adoption (12%), private law children (10%), domestic abuse (8%) and financial remedy (5%) cases.

2. Conflicting figures on the average time taken for divorce proceedings during the quarter. The statistics tell us that the mean average time from petition to decree nisi was 26 weeks, and to decree absolute was 55 weeks – down 3 weeks and up 4 weeks respectively when compared to the equivalent quarter in 2020.

3. Private law children cases (i.e. cases not involving social services) taking longer. In an alarming development we are told that in the quarter it took 42 weeks on average for private law cases to reach a final order, i.e. case closure, which is up 9 weeks from the same period in 2020, reaching record levels in since the Ministry began publishing these quarterly statistics in 2014.

4. Fewer people having legal representation. As the Ministry explained, legal aid was removed for many private law cases in April 2013, and this resulted in a change in the pattern of legal representation over time. In July to September 2021, the proportion of case disposals where neither the applicant nor respondent had legal representation was 37%, increasing by 23 percentage points since January to March 2013, and up 1 percentage point from July to September 2020. Correspondingly, the proportion of cases where both parties had legal representation went from 41% in January to March 2013 to 19% in July to September 2021, down 4 percentage points compared to the same period in 2020

Commenting upon the figures a statistician said: “Volumes of new cases starting across all Family Justice areas have decreased this quarter, possibly stabilising following the recovery from the impact of Covid-19 in the end of 2020 and early 2021. As seen last quarter, the latest figures are more in line with longer term trends seen pre-Covid 19.”

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In an important judgment the Court of Appeal has authorised the identification of a father, a former Tory MP and Minister in Theresa May’s government, who was found to have subjected the mother to domestic abuse, including rape and coercive control.

The findings had been made by the Family Court at Derby in November 2020. The father had applied to the court for an order that he spend time with his child, who was born in 2018. The mother, who is now herself an MP, made various allegations of abuse against the father.

The judge made the findings at a fact-finding hearing, but decided that they should not be made public, in order to protect the child. The father did not seek to appeal against the findings.

Two journalists applied for the publication of the fact-finding judgment, including the names of the parties. Their application was supported by, amongst others, the mother and the child’s Guardian. The father accepted that the judgment could be published, but argued that the interests of the child made it necessary that he, the mother, and the child should all be anonymised.

The High Court found that the child was unlikely to be affected by the publication, in view of its young age, and the father’s behaviour itself would have a greater impact upon the child’s relationship with the father than the publication. Accordingly, the High Court ordered that the publication could go ahead.

The father appealed, to the Court of Appeal. The Court of Appeal held that the High Court was correct and dismissed the appeal, thereby authorising the publication of the judgment, including the names of the parties.

The decision has been generally welcomed, as very few such judgments are published, and it is hoped that the publication of this judgment will help to show the public how the Family Court deals with domestic abuse allegations, and thereby improve confidence in the system, which in turn might encourage victims of domestic abuse to come forward to the courts.

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The new Lord Chancellor and Justice Secretary Dominic Raab has told the House of Commons Justice Committee that he wants more family cases to be kept out of court.

In a committee meeting on the 30th of November Mr Raab was asked what his plan was to deal with the increasing number of private family law cases (that is, cases not involving social services) going through the courts.

Mr Raab said that broadly between 50% and 60% of these cases involve safeguarding (i.e. issues relating to the safety or welfare of the children concerned) or domestic abuse, and therefore need to be heard before a judge because of the issues at stake.

However, he said that the vast majority of the remainder of cases should not really go to court. He commented: “It should not be so easy just to say, “We’ll go to court.””

He went on to say that we ought to be much better at using alternative out-of-court methods of resolving family disputes, such as mediation and arbitration, and that we need to reconcile the incentives for using such methods and going to court. He said that he would “be in the market for something quite drastic and bold in that area.”

He also disclosed that he has “started to talk to the senior judiciary about this and work up a well thought-through approach.”

Mr Raab gave no indication quite what these incentives for resolving disputes out of court may be. They may, for example, involve financial assistance for out of court dispute resolution, such as the mediation voucher scheme that the government briefly ran earlier this year, offering a financial contribution of up to £500 towards the cost of mediation, in eligible cases.

It should be said, however, that there are already considerable incentives to resolve family disputes out of court. Contested court proceedings are stressful, time-consuming and expensive. Everyone involved in a family dispute should, if possible, make every reasonable effort to resolve the dispute out of court.

Family Law Café makes sure you choose the right options to get the outcome you want – very often that means avoiding the court route. Call us for a no obligation call and see what we can offer.

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As the reader may be aware (as this story made the national media in the last few days), the President of the Family Division Sir Andrew McFarlane, the head of family justice in England and Wales, has indicated his intention to open up the family courts.

The family courts have attracted a great deal of adverse publicity in recent years, being accused of operating a system of secret and unaccountable justice.

And it is true that much of what the family court does happens behind closed doors. The primary reason for this is to protect both the children involved and the privacy of those who go before the court. After all, by its very nature family law concerns some of the most private and personal things in people’s lives.

But despite these things the President still believes that there is room to do more to show the public exactly what the family court does, and hopefully thereby reassure the public.

The President is proposing a number of measures, including allowing journalists into more family court hearings, allowing parents to give some details of their cases to journalists, publishing more family court judgments, making reporting of cases more accurate, collecting data at the end of each case, and providing the public with more online information about the work of the court.

So what will all of this mean, particularly for those using the family courts?

The idea of having a journalist sitting in on their case would probably horrify many people involved in family court proceedings. However, Sir Andrew confirms that judges will still be able to decide whether journalists will be able to attend in a particular case. And in any event, the vast majority of family court cases will be of no interest to journalists.

And importantly Sir Andrew has made clear that the anonymity of children will be maintained.

Similarly as to the publication of judgments, these in most cases will still be anonymised, including removing the risk of ‘jigsaw’ identification, through details such as the names of schools, professionals or localities.

In the longer term, one of the most important proposals may be the collection of data at the end of each case. As Sir Andrew says, “data collection could be transformational in terms of understanding the decisions that are being made, seeing patterns and problems, and ultimately achieving better outcomes.”

Hopefully therefore these proposals will lead to a system that is not just better understood, but better generally.

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In a speech to the Jersey International Family Law Conference last week the President of the Family Division Sir Andrew McFarlane set out his plans for a new approach to the resolution of disputes between parents over arrangements for their children.

The President said that he is concerned in particular that parental disputes are mostly now dealt with by the court, and the current system can often only make the conflict between the parents worse.

The President therefore set out his plans for an improved system, which would aim to resolve parental disputes away from court wherever possible, and where that was not possible to have the courts adopt a less adversarial approach.

These ideas, he said, are to be piloted early next year, in courts in North Wales and Dorset.

Specifically, the pilots aim to develop a new, more investigative, approach which will (among other things) promote all forms of non-court dispute resolution (in particular mediation); test out different ‘pathways’ for cases to take depending upon their type and complexity; develop a ‘Child impact’ statement, so that parents can see from the child what impact or effect the proceedings are having upon them; and facilitate more court reviews after final orders, to reduce the number of returning cases.

Alongside this, the pilot areas will develop the concept of a ‘Family Hub’ which will operate separately from the court, and to which families will be directed as the first port of call, rather than issuing a court application. The Hub will in turn refer parents to local agencies that may be able to help with their problems, to mediation, to a parenting programme, to CAFCASS or, where appropriate, to the court.

The President said that these and other plans were aimed at helping to keep parents out of court when possible, and when not possible to improve the way in which the courts deal with cases.

The President expressed the hope that these and other improvements to the system will be in place across the country before he retires in three years’ time.

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Like so many other aspects of society, the Family Court was seriously adversely affected by the Covid-19 pandemic.

Social distancing meant courtrooms could not be used, requiring the introduction of remote hearings on a scale never before seen. This in turn meant that case backlogs increased, as fewer cases could be dealt with.

Meanwhile the number of most types of new cases started in the Family Court dropped dramatically, as people stayed away from the family justice system.

But the Family Court has been recovering from the impact of the pandemic, and the latest statistics released by the Ministry of Justice (‘MoJ’) indicate that the recovery is continuing.

The statistics are for the quarter April to June 2021.

They show that in that quarter 66,357 new cases were started in the Family Courts, which is 14% more than the same quarter in 2020. This was due to increases in most case types including divorce cases (up 7%), financial remedy claims on divorce (up 76%), and private law children applications (i.e. case concerning disputes between parents over arrangements for their children), which were up 11%.

Meanwhile cases dealt with by the Family Court (known as ‘disposals’) were also up. There were 66,252 case disposals in April to June 2021, up 40% on the equivalent quarter of 2020. This was due to increases in most case types, including divorce cases (up 23%), financial remedy claims (up 61%), and private law children applications (up 100%, from a record low at the start of the UK lockdown period).

A statistician commented:

“The recovery from the impact of Covid-19 continues to be seen across family court activity data this quarter, with increases seen in the number of new cases started across most case types as well as increases in the number of disposed cases across all areas compared to the same time last year, at the start of the pandemic in the UK. When comparing to the same quarter in 2019 (as a pre-Covid 19 baseline), most of these changes appear to be reverting to the longer-term trends (i.e. increases seen when comparing to both April-June 2019 and 2020, albeit to a lesser degree).”

It is not all good news, however. The statistics show that many types of cases are now taking longer.

With regard to divorce, the mean average time from the issuing of a divorce petition to the pronouncement of the decree nisi was 25 weeks, and to the making of the decree absolute was 50 weeks. These numbers were up 2 weeks and 4 weeks respectively, when compared to the equivalent quarter in 2020.

And as for private law children cases, in April to June 2021, it took on average 41 weeks to reach a final order, i.e. case closure, which was up 13 weeks from the same period in 2020. This, says the MoJ, continues the upward trend seen since the middle of 2016, where the number of new cases overtook the number of disposals.

The MoJ state that measures are being taken to address the issue of timeliness, although it may be some time until improvements are seen.

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When parents are unable to resolve a dispute over arrangements for their children then one of them may apply to the Family Court for the court to decide the matter.

The Family Court proceedings will follow a procedure laid down by the rules. The first step in the procedure, once the application has been issued, is called the First Hearing Dispute Resolution Appointment, or ‘FHDRA’ for short.

Both parents must attend the FHDRA, and a Cafcass (court welfare) officer will also attend.

So what exactly is a FHDRA?

As the name suggests, the aim of the FHDRA is to provide an opportunity for the parents to be helped to an understanding of the issues that divide them, and to reach agreement.

At the FHDRA the judge, working with the Cafcass Officer, will seek to assist the parents in conciliation, and in resolution of all or any of the issues between them. Any issues that cannot be resolved will be identified, and the Cafcass Officer will advise the court of any recommended means of resolving these issues.

If the parents are able to reach a full agreement then the court may make an order reflecting the terms of the agreement.

If the parents are not able to reach a full agreement then the court will give directions as to how the case should proceed.

Typically, the court will direct that Cafcass investigate the case and prepare a report for the court, usually containing a recommendation as to what final order the court should make.

The court may also direct that a ‘fact-finding’ hearing take place, for the court to decide the truth of any allegations made by either party, for example allegations of domestic abuse.

Lastly, the court will fix a date for the next hearing, assuming there is no fact-finding hearing. This will usually be a ‘Dispute Resolution Appointment’, the purpose of which is to see if the case can be settled by agreement, before a final hearing takes place.

The FHDRA plays a very important role in any children application. In fact, it is arguable that it is the most important hearing in the application – when the future progress of the application, and even its outcome, can be decided.

It is therefore essential that you take expert legal advice before attending a FHDRA. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Last week we began looking at the procedure that the court follows on an application for a financial remedies order. Specifically, we looked at the First Directions Appointment, or ‘FDA’.

We now turn to the next stage in the procedure: the Financial Dispute Resolution appointment, or ‘FDR’, at which both parties (and their lawyers, if they are legally represented) must attend.

The basic idea of the FDR is to see if the case (or even just part of it) can be settled by agreement without having to be decided by the court, thereby saving time and costs.

The FDR is before a district judge, but they will not decide the case, or force a party to agree to a settlement – their task is to try to help the parties reach an agreement.

One way the judge may try to encourage settlement is by giving an indication of how the court is likely to decide the case if no agreement is reached. Making the parties aware of which way the case is likely to go should prompt reasonable negotiation.

The parties themselves have an obligation to “use their best endeavours to reach agreement on matters in issue between them.” They will do this by putting forward, and responding to, settlement offers.

Note that any settlement offer made at an FDR cannot subsequently be relied upon by the other party, unless they are re-stated in open correspondence after the FDR.

If a full agreement can be reached at the FDR (and most cases are agreed at or before the FDR) then the district judge will ask the parties to draw up a consent court order, setting out the terms of the agreement, for approval.

If no full agreement can be reached at the FDR then the district judge will give directions as to how the case should continue, for example by fixing a date for a final hearing, at which the court will hear all the evidence, and make a final decision on the case.

It should be noted that if the case does proceed beyond the FDR the district judge who conducted the FDR will take no further part in proceedings. This avoids any suggestion later in the proceedings that he or she has ‘pre-judged’ the case, and enables the parties to make proposals freely at the FDR, knowing that the judge who decides the case will not have heard them.

The FDR is a crucial step in the process of a financial remedies application, at which the outcome of the case can be decided. It is therefore essential that anyone required to attend an FDR first seeks expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Unless a divorce settlement is quickly agreed between the parties then one of them is likely to apply to the court for a ‘financial remedies’ order, whereby the court will decide upon the settlement.

Financial remedies applications follow a procedure set down by the rules, and it is important to understand how the procedure works. What follows assumes that the parties are not able to reach an agreement along the way – if they do, then obviously the case comes to an end.

The first thing to understand is that the procedure does not involve just one court hearing, at which the court will make its final decision. In fact, there may be several hearings before the final one, depending upon the complexity of the case.

The first hearing, which will be fixed by the court when it receives the financial remedies application, is the ‘First Directions Appointment’, or ‘FDA’ for short. Both parties will have to attend the FDA.

Before we explain what an FDA is, we need to look at what must be done between the issuing of the application and the FDA.

Perhaps the most important thing that each party must do is prepare a detailed statement of their finances (known as a ‘Form E’), and send copies of the statement to the court and the other party. The point is that no settlement can be ordered or agreed unless the financial circumstances of both parties are fully disclosed.

Of course, you don’t have to accept the contents of the other party’s Form E at face value. They may, for example, have omitted certain assets. Accordingly, the rules allow each party to prepare a questionnaire for the other party to answer, requesting further information relating to the other party’s finances.

So we come to the FDA.

The rules state that the FDA “must be conducted with the objective of defining the issues and saving costs.” In other words, the court will want to know what matters are in dispute between the parties, and therefore have to be decided by the court – reducing the job of the court in this way will hopefully shorten the case, and therefore reduce the costs of the parties.

To this end, the court will give directions as to what should happen next in the case. Exactly what directions it gives will vary from one case to another, but the following directions are made in most cases:

1. A direction setting out which questions in the questionnaires must be answered.

2. Directions regarding the valuation of assets, for example that the parties should agree who should value the former matrimonial home.

3. Directions as to what evidence each party may produce (you can’t simply produce any evidence without the court’s permission).

4. In a case where a pension order is requested, a direction that the party with the pension provide details of the pension.

5. Lastly, directions as to what should happen next in the proceedings. For example, unless the court considers it will not be appropriate, it will usually fix a ‘Financial Dispute Resolution’ (‘FDR’) appointment, at which the parties will be expected to try to negotiate a settlement, with the help of the judge. If an FDR is not appropriate then the court may fix a date for a final hearing.

The FDA is an important step in the process of a financial remedies application, and it is thus essential that anyone required to attend one first seeks expert legal advice. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Access to a court of law is a basic right of all citizens. However, the courts do have the power to restrict that access if the legal system is abused.

Obviously, this is a power that the courts will only use in exceptional cases.

Contempt of court

One such situation is where a party seeks an order from the court, whilst simultaneously ignoring another order that the court made previously.

Clearly, you should not expect the help of the court if you are in contempt of court for failing to obey an earlier order. Or, to put it another way, you can’t pick and choose which court orders to obey.

This was demonstrated in a recent case involving complex proceedings between parents concerning arrangements for their children.

The father had previously been ordered by the court to pay the mother’s costs of earlier proceedings, amounting to some £97,000. The father had failed to pay that sum and as a result, the mother was in debt to her solicitors for a considerable amount, significantly restricting her ability to contest the case, and enforce previous court orders.

Meanwhile, the father sought to appeal against two orders made by the court in those earlier proceedings.

Impediment to justice

Obviously aggrieved by this situation, the mother applied to the court for an order that the father’s appeals be dismissed unless he paid the outstanding costs.

Hearing the mother’s application, the judge found that the father was clearly in contempt of court by not paying the costs. He had the means to make payment, but had chosen not to.

The judge therefore directed that the father pay the sum of £97,000 to the mother’s solicitors by 4pm on the 30th of April, failing which the father’s appeals would be dismissed. This, said the judge, was “necessary to remove the impediment to justice that non-payment in contempt causes the … mother.”

The case is a good illustration of the importance of obeying court orders: not only will you face sanctions for the failure to obey an order, you may also find that your access to the court is restricted.

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Parents involved in court proceedings regarding their children have expressed concerns over the use of remote hearings, via video or telephone, which have become commonplace during the pandemic.

Responding to a consultation on remote hearings commissioned by the President of the Family Division, 73% of parents indicated that they did not feel supported during their hearing(s).

Just under half (46%) did not have legal representation, and others raised concerns about not being able to be with their legal representative during the hearing, and the difficulties communicating with them as a result.

Two in five reported that they had wanted to attend court but had been prevented from doing so.

More than 3,200 professionals (lawyers, magistrates, judges, social workers and others in the family justice system), parents and other family members from across England and Wales responded to the consultation, which was carried out by Nuffield Family Justice Observatory, an organisation which aims to improve the use of data and research evidence in the family justice system.

The majority of professionals responding to the consultation saw a continuing role for certain types of remote hearing, though raised concerns that hearings were often remote ‘by default’ and that considerations such as the vulnerability of lay parties and their wishes and views, the complexity of the case, and whether there was access to suitable technology for all those taking part should be taken into account.

However, nearly two-thirds of professionals felt that more needs to be done to ensure that remote hearings were fair and worked smoothly.

Suggestions to improve how remote hearings were run included making sure lay parties and their representatives were better prepared for the hearing, checking access to technology/links before the start of the hearing, providing better written guidance to parents and professionals and improving the technology.

Lisa Harker, director of Nuffield Family Justice Observatory, commented:

“There is a clear disconnect between the measures professionals can see would help remote hearings run more smoothly – particularly for parents and family members – and what is still happening in some family courts. Many of the suggestions for improvements are neither complicated nor new, so it is vital to understand why they are not being put into practice. Families must feel that they have had fair access to justice in what are some of the most life-changing cases heard in courts – and that must apply to remote hearings too.”

It now seems clear that remote technology will continue to be used after the pandemic, at least for some types of court hearings. However, the benefits that they bring should not come at the cost of fairness to the parties involved.

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