Family Law Cafe | Courts Service sets out plans for e-working in the family jurisdiction

Everyone who uses the Family Court will be affected by its workload. If the court has a high workload then cases will take longer to be dealt with, and this will be to the detriment of all concerned, especially all of the children waiting for their futures to be determined by the Court.

The current state of the court workload should therefore be of interest to all who are involved in, or are contemplating, Family Court proceedings.

And the best indication of the Court’s workload is provided in quarterly statistics published by the Ministry of Justice.

The latest statistics, for the period October to December 2023, have just been published, and the news is generally quite positive.

The statistics show that during that period there were decreases in the number of case starts for most case types, including matrimonial (divorce, civil partnership dissolution, judicial separation and nullity), domestic violence, public law children cases (i.e. cases involving social services) and private law children cases. There were, however, increases in financial remedy case starts.

The number of cases that have been concluded has also increased in most areas, but there has been a decrease in public law and private law children case disposals.

Overall, during 2023, there were 251,625 new cases started in family courts (excluding adoption, for which there are no figures), which was down 4% from 2022.

All of this appears to be good news, indicating that the pressure on the Family Court, which has been so high for so long, may at last be easing.

But the most important statistics for court users relate to how long cases are actually taking.

And here the news is rather less good.

Divorce proceedings are taking longer. In October to December 2023 the mean average time from application to conditional order was 42 weeks, which was up 4 weeks from the same quarter in 2022. And the mean average time from application to final order was 69 weeks, which was up 2 weeks from the same quarter in 2022.

The news for the timeliness of private law children cases was not much better. In October to December 2023, it took on average 46 weeks for private law cases to reach a final order, i.e. case closure, which was similar to the same period in 2022. But for 2023 overall, it took 46 weeks on average for private law cases to reach a final order, compared to 44 weeks in 2022.

Unfortunately, the statistics do not include figures for the timeliness of other types of cases, but management information published by HM Courts and Tribunals Service does include figures for the timeliness of public law children cases.

Those figures show that in January 2023 public law cases were taking an average of 41 weeks to be dealt with, which went down to 38 weeks by December 2023.

So all in all, rather mixed news for users of the Family Court.

You can find the latest quarterly Family Court statistics here.

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On the 20^th of November the Ministry of Justice, HM Courts & Tribunals Service, and the Lord Chancellor Alex Chalk KC published a news story telling of their “Vision for the future of civil and family courts and tribunals”.

Unfortunately, the story gave little information as to what exactly this “vision” was, or how it would be achieved.

The story did explain that the government intended to “make it easier for people experiencing legal problems to access high quality information and support at the right time and in the right way”, and “to enable people to resolve their problems earlier and at less cost, for example through mediation or online dispute resolution … safe in the knowledge that if this is not successful, it will be straightforward to take the next step of seeking judicial determination through the courts or tribunals”.

All of this sounds very significant, but what will it mean in practice?

Thankfully, we have since been provided with a little more information.

A speech by the Lord Chancellor given on the day of the news story has since been published by the Ministry of Justice. In it we are given just a few more detail of what the ‘Vision’ actually means.

The Vision, it seems, is really to do with the early stages of dispute resolution: making sure that anyone needing the help of the law has access to proper advice, including regarding their options to resolve the dispute, such as mediation, thereby possibly avoiding what the Lord Chancellor described as “the acrimony and heartache that all too often accompanies contested litigation.”

And where mediation isn’t successful the new system will make it straightforward to take the next step of taking a case through the courts “by encouraging and building online and offline connections between different parts of the system”.

This new digital justice system will be underpinned and governed by an Online Procedure Rules Committee, which will provide governance and develop data standards for the system (obviously the new system will have to ensure that user’s data is kept safe).

The Lord Chancellor gave no indication as to when this new system will become a reality.

The Lord Chancellor is of course quite correct that it is essential that anyone with a family dispute should seek expert legal advice at an early stage. Whether this new system will succeed in providing bespoke advice for all as a real alternative to consulting an expert lawyer, we will have to wait and see.

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The Ministry of Justice has published its latest statistics for the family court, for the quarter April to June 2023.

The statistics include some news that is good, some that is not so good, and some that is neither good nor bad, but is certainly interesting.

Reduced court workload

Under the ‘good’ category, the statistics indicate a welcome reduction in the workload of the family courts, with fewer cases being started in most case types and more cases being dealt with by the courts in most case types.

For example, there were 13,080 new private law applications (i.e. cases involving disputes between parents over arrangements for their children) made in April to June 2023, which was down 4% on the equivalent quarter in 2022.

And there were 9,546 financial remedy cases disposed of by the courts, which was up 15% on the same quarter last year.

Cases taking longer

But the news was not all good.

For example, the statistics indicated that private children cases have been taking quite a lot longer.

In April to June 2023, it took on average 47 weeks for private law cases to reach a final order, i.e. case closure, which is up almost 3 weeks from the same period in 2022.

This continues an upward trend seen since the middle of 2016, when the number of new cases overtook the number of disposals.

Divorce under the new law

Lastly, in the ‘neither good nor bad, but interesting’ category we have the latest statistics in relation to divorce under the new ‘no-fault’ system introduced in April last year.

The statistics perhaps show how the new law will affect divorce long-term, now that things have ‘settled down’ following the law change.

The statistics show that in April to June 2023 there were 24,624 applications made for divorce and dissolution of civil partnerships. This is down 30% from the same period last year, when cases rose due to people waiting for the new law before issuing proceedings.

The figure is interesting because some feared that the new law, making divorce simpler, would lead to an increase in the number of divorces long-term. However, this appears not to be happening, as the new figure is similar, or even lower, than those under the old law.

Also of interest is the statistic that 25% of all divorce applications in the quarter were made jointly by the husband and the wife. The new law made joint divorce applications possible for the first time, and they are obviously likely to help reduce animosity on divorce.

The full statistics can be found here.

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New research has shed light upon the experiences of parents and other adults who go to court to sort out arrangements for their children.

The research, carried out by the Nuffield Family Justice Observatory (‘NFJO’), focused on the adults involved in these cases, how their characteristics may affect their needs when they go through court, and the type of information and support that could improve their experiences.

The research came up with seven key findings:

1. That court is a last resort for separating families. The research found that only a small percentage of separating parents go to court to sort out arrangements for their children, most families preferring to avoid court due to costs, stress and concern for their children’s well-being. This is important. Court proceedings should always be seen as a last resort, with the parents making every effort to resolve their differences by agreement, whether directly, through lawyers, or via mediation.

2. That families in these cases are often facing deprivation. Research shows that the majority of families involved are from the most deprived areas, with limited access to resources affecting the level of support available to adults and their court experience.

3. That while most people in these proceedings are white, there is an over-representation of people from some other ethnicities. The NFJO says that evidence suggests that women from ethnic minorities often have worse experiences in court due to the impact of cultural stereotypes.

4. That not all people involved in these proceedings are parents. Ten per cent of applications are made by grandparents and other non-parents. We have previously discussed this, here.

5. That many families going through court have experienced health issues. The NFJO say that adults involved in these cases have a higher likelihood of experiencing mental health issues before they go to court, including depression, anxiety and self-harm. They are also more likely to have substance misuse problems.

6. That a growing number of adults in these proceedings are representing themselves in court. This is due to legal aid being removed back in 2013. Unsurprisingly, the research found that the court experience of these people is often negative, although it can be improved if legal professionals take time to support them, and if they have an understanding about court processes.

7. Lastly, that domestic abuse is an issue for many families involved in these cases. Sadly, not an unexpected finding. The NFJO says that victims of domestic abuse often have negative experiences in court, including concerns about being believed, as well as worries for their physical safety and mental well-being. However, research shows that legal professionals can improve victims’ experiences through actions such as understanding domestic abuse, actively listening to victims, and involving court independent domestic violence advisors, who provide support for abuse victims. Legal aid is available to victims of abuse, who can therefore seek expert legal advice.

It is hoped that these findings will be used to help improve the experiences of parents involved in these proceedings.

The research paper can be found here.

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Taking a family case to court is obviously a very serious step, which should only be taken after the most careful consideration.

But what exactly are the factors that influence a court user’s decision to take a case to court?

A recent study commissioned by the Ministry of Justice sought to find the answers.

The study was carried out by the market research organisation Ipsos UK. It comprised interviews with a small group of civil and family court users whose cases had concluded since 2019.

The research objectives included exploring how emotional and financial factors influenced decisions to go to court, how awareness of and ability to manage the court process influenced decisions, and how financial considerations influenced decisions.

The study also looked at court user’s perceptions and experience of the court process.

The research found that emotional motivations played an important role in influencing decisions to take a case to court. These motivations were typically characterised by the desire for justice, the desire for recognition about the validity of the case, desire to share their personal experience, and the desire for emotional closure on a complex issue or traumatic experience.

Many of these things will surely ring true for family court users, even if they are not necessarily good reasons to go to court.

Obviously, financial motivations in family cases would be limited to those cases involving financial claims, such as financial remedy applications on divorce, although the research found that financial motivations were often interwoven with emotional motivations, particularly where participants expressed feeling entitled to financial compensation for the mistreatment they had experienced.

Another important factor was court users’ confidence and belief in their ability to navigate court processes, with those having legal representation obviously having greater confidence.

And the cost of going to court is of course a very important factor. Clearly, advice should be sought about potential costs before commencing court proceedings, despite the research finding that many participants believed that the issue they were seeking to resolve was so important that they would have found a means by which to pay the cost regardless.

As to court user’s perceptions and experience of the court process, researchers found that experiences were mixed, although unsurprisingly participants who received legal advice or legal representation tended to have a better awareness about the court process and their perceived capability to manage it, by virtue of being represented.

However, regardless of representation status, many reported underestimating how emotionally demanding the court case would be. This can, of course be especially true of family cases.

As stated above, taking a family case to court is a very serious step. It should only be taken as a last resort, and after taking 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.

You can read the full report here.

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It is sadly not unusual for the police to be involved when a family separates, particularly when there are allegations of domestic abuse.

But what if there are ongoing court proceedings relating to a child of the family? What court papers can be shown to the police?

The question arose in a recent High Court case.

The case concerned a father’s application for contact with his child. The mother made a number of allegations of domestic abuse against the father.

The court held a fact-finding hearing, at which ten of the allegations were found to be proved.

Notwithstanding this, the court ordered that the father should have contact with his child.

Sometime after this the mother made a complaint to the police that the father was harassing her. The police visited her and she showed certain documents from the court proceedings to the police, including a Cafcass report.

Finding out about this, the father sought to bring proceedings against the mother for contempt of court, by breaching the rules as to what documents she could disclose to the police.

As the judge himself complained, the rules covering what parties can lawfully disclose to the police are extremely complicated, and we will not attempt to set them out in full here.

In simple terms, the rules say that unless the court has permitted wider disclosure only the judgments and orders of the court may be shown to the police. Other court documents, such as Cafcass reports, may not be shown to police officers, unless they are specialist child protection officers (which they were not in this case).

After carefully weighing all of the relevant factors, the judge refused the father permission to bring contempt proceedings against the mother, for a number of reasons that need not be listed here.

However, the judge did admonish the mother for her conduct, explaining that it was absolutely forbidden for her to show the (non-specialist) police officers any documents from the contact proceedings, other than judgments or orders. If she wanted to do so then she needed to obtain an order from the court allowing it. That is what the law says, and that is the law that must be obeyed.

Contempt of court is a serious matter, which could result in a prison sentence. Obviously things could have ended much worse for the mother in this case.

The lesson is clear: if in doubt as to what court documents you may show to the police, take legal advice.

You can read the full judgment here.

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As is well known, there is a general rule in civil court proceedings that the unsuccessful party will be ordered to pay the successful party’s legal costs.

Because of this rule many people will enter into family court proceedings under the impression that if they win their case the court will order the other party to pay their costs.

But this is not necessarily true.

By their nature family court proceedings differ considerably from other types of civil proceedings. Often it is not even appropriate to talk in terms of ‘winners’ and ‘losers’, especially where children are involved.

In the light of this difference the rules relating to costs in family proceedings are not the same as the rules that apply to other types of civil proceedings. In fact, for most types of family proceedings the ‘loser pays winner’s costs’ rule does not apply.

The basic rule in family proceedings is simply that the court may make such costs orders as it thinks just.

And the court will rarely, for example, think it just for a costs order to be made in a children case, unless one party’s conduct of the case was so unreasonable as to merit the making of a costs order against them.

As to financial remedy proceedings, the rule is slightly different. It states that the court will not make an order requiring one party to pay the costs of another party, but may do so where it considers it appropriate, because of the conduct of a party in relation to the proceedings (whether before or during them).

In deciding whether to make a costs order in financial remedy proceedings the court will have regard to a number of matters, including any failure by a party to comply with court rules or orders, any open settlement offers made (not any offers made ‘without prejudice’), and whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.

Not all financial remedy proceedings are covered by this rule, for example applications for maintenance pending suit, applications to enforce financial orders, and applications for financial provision for a child.

Finally, we mentioned above that for most types of family proceedings the ‘loser pays winner’s costs’ rule does not apply. There are two types of family proceedings to which it does apply: inheritance claims against the estate of a deceased person, and trusts of land cases, mostly commonly used to resolve property disputes between cohabiting couples, to request the court to determine shares in the property, and whether or not the property should be sold.

Whether you are likely to recover your legal costs from the other party is obviously a matter that should be considered before commencing court proceedings. You should therefore seek expert legal advice before going to court.

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In an important new report the charity JUSTICE has recommended 43 ‘ambitious but realistic’ improvements to access to justice by separating parents who are unable to agree arrangements for their children.

With regard to the wider family justice system outside of court the recommendations include:

Information and early legal advice: JUSTICE recommends the creation of a single authoritative information website for separating families, and piloting of publicly funded early legal advice for child arrangements problems.

Coordination of legal and non-legal services: JUSTICE recommends the creation of ‘hubs, alliances and networks’ to coordinate services for separating families in the community, including contact centres; courses and workshops; domestic abuse support; legal support; mediation; mental health support; mentoring support; support for children; and other support groups.

A child participation presumption: Throughout the justice system, JUSTICE recommends a new presumption that all children will be offered the opportunity to participate in processes which assist in the resolution of a dispute which concerns them, both in and out of court, in an age-appropriate way. The presumption could be rebutted, for example if the child is too young, or if more harm would be done by involving the child than not.

Non-court dispute resolution: JUSTICE says that in addition to mediation, other non-court dispute resolution processes should be financially supported, including “packages” of support which combine legal help with non-legal help (like counselling). Non-court processes, they say, “need to be better supported to be child inclusive, through parental education, professional practice, and funding incentives.”

As for when cases go to court, the recommendations include:

The introduction of a “case progression officer”: In every case there should be a neutral, legally-trained court employee, who will: provide the family with information at the outset and throughout; manage preparation for hearings if one or both sides are unrepresented; answer queries about the outcome of any hearing; and help a litigant in person with the next steps required of them.

An initial investigation conducted by a “Court Team”: A multidisciplinary Court Team, consisting of the case progression officer, a Cafcass officer, and possibly others, should screen the whole family for risk, provide the family with information, talk to the adults and relevant third parties such as the child’s school, and also consult the child. The investigation could make referrals for support while the family try another process, such as mediation, or it could better prepare the case for the judge/magistrates.

Child participation in court: Following on from the child participation presumption, JUSTICE recommends that the court should have an explicit duty to offer children the opportunity to participate in proceedings, including letting the child meet the decision-maker more often, and giving the child feedback about the outcome and how their voice was taken into account.

Cases should be reviewed as standard: Lastly, JUSTICE recommends that a reviewing officer, normally from Cafcass, should follow up with the family, including the child, after a certain period of time to ask if the final order is working in the best interests of the child. If it isn’t, the same judge could hold a review hearing to consider any changes necessary.

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The Ministry of Justice has published its latest statistics for the work of the Family Court, for the quarter April to June 2022.

The statistics indicate that the court is disposing of fewer private law children cases (i.e. children disputes between parents) and fewer financial remedy cases.

And these figures could have serious implications for the length of time it takes to have these cases dealt with by the court.

As to private law children cases, the number of disposals in April to June 2022 was 26,924, which was down 16 per cent on the equivalent quarter in 2021.

And whilst it is true that the number of applications was down (by 7 per cent) on the equivalent quarter in 2021, the statistics also tell us that these cases are taking much longer to be dealt with.

In April to June 2022, it took on average 46 weeks for private law cases to reach a final order, i.e. case closure. This is up 6 weeks from the same period in 2021, and the highest value since the quarterly statistics were first published in 2014.

This continues an upward trend seen since the middle of 2016, where the number of new cases overtook the number of disposals.

Moving on to financial remedy cases the statistics tell us that there were 9,239 financial remedy applications made in April to June 2022, 71 per cent of which were uncontested, and 29 per cent contested.

The total is down 31 per cent from the same period in 2021, which probably reflects the number of applications returning to pre-pandemic levels, there being a ‘spike’ last year, following the dramatic drop in applications when the pandemic first hit.

But whilst the drop in applications may be welcome, the statistics also tell us that in the quarter there were 8,253 financial remedy disposals events, which is down 26 per cent from the same period in 2021.

Unfortunately, the statistics say nothing about how long the court is taking to deal with contested financial remedy applications, but they do tell us that whilst there were 2,673 contested applications in the quarter, only 2,183 contested applications were disposed of, whether because they became uncontested or were dealt with by the court.

Obviously, having more new cases than disposals is a worrying trend, which could well result in cases taking longer.

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It is rare for the President of the Family Division, the head of the family courts in England and Wales, to express their views in the mainstream media.

So when the current President Sir Andrew McFarlane spoke recently to the BBC, his words were worth noting, particularly for anyone who is, or may be, involved in proceedings in the courts.

Speaking to BBC Radio 4’s Broadcasting House programme, Sir Andrew said that some of the separating couples going to court, particularly to discuss the future of their children, would be better off not going to court.

At the moment, he said, for many couples court is the first port of call, when it should be the last resort, at least where there aren’t issues of domestic abuse or child safeguarding.

Sir Andrew said that his feeling was that about 20% of families who go to court to have a dispute about their children resolved would be better served by at least first of all trying to sort out the dispute in other ways.

He agreed that many parents see such disputes as a legal issue, when it is not. It is a relationship problem that they have, and the law merely provides the structure that, if needed, will resolve the dispute, and impose a resolution upon them.

And parental battles in court inevitably have an impact upon the children involved.

Sir Andrew said that research shows consistently that if you’re the child of parents who are at odds with each other that is unhealthy, and to have a dispute that runs on in the courts is highly likely to harm the child.

And Sir Andrew said that parents are fooling themselves if they say they are not involving the children, or that the children don’t know.

So what is to be done? Sir Andrew explained that the family courts are already piloting new ways of working, and part of that is that early on a social worker will file with the court a ‘child impact assessment’, with the idea of providing a wake-up call to the parents as to the impact of what they are doing on their child.

And of course the parents themselves can do more to try to resolve their disputes out of court, whether by negotiation, through mediation, or by some other means.

Family Law Cafe will help you choose the right option to resolve your family dispute. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The Ministry of Justice has published its latest quarterly statistics for the work of the family court, for January to March 2022.

And as so often the statistics paint a mixed picture.

The good news is that there was a decrease in the number of new cases started in the quarter, hopefully reducing the pressure on an already over-worked system.

In January to March 2022, 68,134 new cases were started in the family courts. This is down 6% on the equivalent quarter in 2021.

The drop was due to decreases in most case types, including an 18 per cent decrease in financial remedy cases, a 9 per cent decrease in cases concerning disputes between parents over arrangements for their children and a 2 per cent decrease in divorce cases. However, there was a 2 per cent increase in domestic violence case starts.

And the decrease in divorce cases may have been due to people waiting for the introduction of the new no-fault divorce system in April.

In not such good news there were 57,094 case disposals in January to March 2022, which is down 12 per cent on the equivalent quarter of 2021. This was due to decreases in most case types, including divorce (21 per cent), financial remedy cases (7 per cent) and children cases (2 per cent). However, there was a 9 per cent increase in domestic violence case disposals.

Perhaps the most worrying news though relates to the time that the courts are taking to deal with disputes between parents over arrangements for their children.

In January to March 2022, it took on average 46 weeks for these cases to reach a final order, i.e. case closure, which is up 7 weeks from the same period in 2021, and the highest value since the present records began in 2011.

This increase continues the upward trend seen since the middle of 2016, when the number of new cases overtook the number of cases disposed of.

Hopefully the decrease in new cases might reverse the trend in future, but meanwhile the message for parents involved in disputes relating to their children must surely be: do everything you reasonably can to resolve the dispute before going to court.

The best way to avoid court is of course to agree matters with the other parent. And if you can’t reach agreement through negotiation, then give serious consideration to mediation.

And if that fails then a quicker alternative to court proceedings would be to refer the case to arbitration, whereby a trained arbitrator will decide the case, and the parties agree to be bound by the arbitrator’s decision.

At Family Law Cafe we do all we can to help you resolve your matter without going to court. For more details about the service we provide and how we can help you, call us on 020 3904 0506, or click here, and fill in the form.

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It is sadly not uncommon that a party to family proceedings, especially proceedings involving children, believes that the judge dealing with their case is biased against them.

When this occurs the aggrieved party can ask the judge to step down, and take no further part in the proceedings. This is known as a ‘recusal application’.

Justice must of course both be fair, and be seen to be fair. A judge should therefore recuse themselves from a case not only when there is actual bias, but also when there is the appearance of bias.

But what if the judge refuses to step down? The answer then is for the party who requested them to step down to appeal against the refusal.

The court hearing the appeal will look at all of the circumstances of the case which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased.

An example of this process in action took place in a recent long-running case about arrangements for a four year-old boy.

The boy’s mother felt that the judge was biased against her, and requested him to recuse himself from sitting on the final hearing in the proceedings. The judge refused to do so and the mother appealed, to the Court of Appeal.

In support of the appeal the mother raised a number of instances during the course of the previous proceedings, which she claimed showed that the judge was biased.

The instances fell into two categories: those in which the judge showed apparent bias against the mother, including treating the father differently, and those in which he criticised the conduct of the barrister who was representing the mother, including threatening to report him to the Bar Standards Board, which is responsible for regulating barristers.

But the Court of Appeal concluded that in relation to both categories of instances they would not lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother.

It was true that the judge had been critical of the mother, but those criticisms had been based upon findings that he had made against her, which the mother had not appealed against. Bias means a prejudice against a party for reasons unconnected with the merits of the case – here the judge’s criticisms of the mother were plainly based on the merits of the case.

As to the mother’s barrister, the judge had criticised the barrister’s conduct, but those criticisms were no more than was to be expected from a professionally trained judge, and had had no effect on his decision-making.

Accordingly, the Court of Appeal concluded that there was no basis on which the judge should have recused himself, and that the mother’s appeal should therefore be dismissed.

As indicated above, it is not uncommon for a party to family proceedings to feel that the judge is biased against them. But that does not mean that there is bias, real or apparent. Anyone contemplating applying to the judge dealing with their case to recuse themselves should therefore first seek expert legal advice.

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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 30^th 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 30^th 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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The Law Society, the professional body for solicitors in England and Wales, has warned that the inappropriate use of remote court hearings may impede justice and the rule of law in the family courts.

The warning comes in the Society’s response to a consultation by the Nuffield Family Justice Observatory (‘NFJO’) evaluating the role of remote hearings in the family justice system.

Remote hearings, via video conferencing or telephone, have of course been widely used during the Covid-19 pandemic, as social distancing measures have made the use of courtrooms problematic. The consultation is intended to inform how the family courts and should operate during the court ‘recovery’ period following the pandemic.

Law Society president I. Stephanie Boyce said: “Remote hearings have generally found a suitable place in the family justice system … In some instances, they have removed family tensions, made emergency hearings simpler to attend and been more convenient and efficient for advocates, parties and judges.

“However, the biggest factor in deciding whether a hearing should be remote or in person must be any potential impediment to access to justice. If parties feel they can’t fully participate and understand what’s happening, in-person hearings should be the default format.”

She went on: “Parties who lack the appropriate technology (such as good WiFi or relevant hardware), aren’t technologically literate or who need an intermediary or translator may struggle to feel fully involved in remote hearings … Some litigants in person – parties without legal representation – are also struggling with remote hearings, especially when they are complex. This causes difficulties in accessing justice and being able to fully participate, which also causes delays to hearings.”

She suggested that ‘hybrid’ hearings, in which some participants take part in court and others remotely, may be a compromise. However, Law Society members have said that these can be much longer, and the technology isn’t always adequate. The Society says that if they are used in future, ways of improving their effectiveness should be analysed and implemented.

The NFJO consultation ended on the 27^th of June. The NFJO will report upon the results of the consultation, and its report is likely to have a substantial bearing upon decisions as to what aspects of remote working should be retained after the pandemic.

The NFJO supports better outcomes for children in the family justice system in England and Wales by improving the use of data and research evidence in decision-making.

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The Court of Appeal has given guidance upon the approach that the Family Court should take to allegations of domestic abuse when dealing with disputes between parents over arrangements for their children.

As we mentioned here in this post, the court was hearing four linked appeals by mothers involved in proceedings relating to their children, in which the mothers had raised issues of domestic abuse.

As the Court of Appeal pointed out, allegations of abuse are often made by one or both parents in children cases. In fact, it is estimated that at least 40% of such cases now involve allegations of domestic abuse.

When allegations are made, the court must decide, usually at an initial ‘fact-finding’ hearing, whether they are true and what effect, if any, they should have upon the arrangements for the children.

This can obviously be a difficult task, balancing on one hand the safety and welfare of the child, and on the other hand the ‘right’ of the child and parent to have a continued and full relationship.

The guidance given by the Court of Appeal focussed primarily upon the issue of coercive and controlling behaviour.

Coercive and controlling behaviour involves one party seeking to restrict the other, over a period of time. It can take many forms, such as the abuser preventing the other party from spending time with their family and friends, or controlling them by restricting their access to money.

Emphasising the importance of such behaviour, the Court of Appeal said that the courts should prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established, over and above the determination of any specific factual allegations.

The Court of Appeal stated that where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be considered because of their potential relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation (such as an allegation of rape) was so serious that it justified determination irrespective of any alleged pattern of coercive and/or controlling behaviour.

The guidance was welcomed by Lucy Hadley of the domestic abuse charity Women’s Aid, although she expressed concern that it did not go far enough, saying:

“…we are severely disappointed that the Court of Appeal did not call for an end to the ‘contact at all costs’ approach, which is putting women and children experiencing domestic abuse in danger … We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors. We will continue to fight for a change to the presumption of parental involvement in domestic abuse cases – for good.”

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If you are a victim of domestic abuse you should seek expert legal advice, at the earliest stage. 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 the Ministry of Justice published its latest statistics for cases dealt with by the Family Court, for the quarter October to December 2020.

The headline from the statistics was that there were 68,634 new cases started in Family courts in October to December 2020, which was up 6% more than the same quarter in 2019. This was due to increases in most case types: domestic violence (21%), financial remedy (8%), matrimonial (5%) and private law (3%) cases.

On the other hand, the annual figures paint a rather different picture. Annually, there were 264,091 new cases started in Family courts throughout 2020, which was very similar to 2019, when 266,059 new cases were started.

Perhaps the most important figure, however, was the increase in domestic violence (abuse) cases. The number of domestic violence remedy order applications increased by 19% compared to the equivalent quarter in 2019, while the number of orders made increased by 20% over the same period. There were 35,984 applications and 39,427 orders made throughout 2020, up 20% and up 17% respectively from 2019.

These statistics confirm fears of an increase in the incidence of domestic abuse during lockdown, as couples are forced to live together.

The statistics also showed an increase in the average time for divorce proceedings. The mean average time from petition to decree nisi was 30 weeks, and decree absolute was 56 weeks – up 2 weeks and 4 weeks respectively when compared to the equivalent quarter in 2019. The median time to decree nisi and decree absolute was 20 and 39 weeks respectively.

However, once again the annual figures paint a slightly different picture. Throughout 2020 the mean time from petition to decree nisi was 28 weeks and 53 weeks to decree absolute, each down 3 weeks respectively.

A statistician commented on the figures:

“The impact of Covid-19 continues to be seen across family court activity this quarter, with noticeable recovery as work levels return to pre-lockdown levels (seen in the number of new cases started and disposed across most areas since the first lockdown period). The negative impacts on timeliness measures continue, with work progressing to address the impact to the family justice system.

“Domestic violence remedy levels remain high, with substantial increases in both new cases starting and cases with a final disposal – up 21% and 38% respectively compared to quarter 4 2019…

“It may be some time until improvements as a result of recovery measures taken begin to show, particularly relating to timeliness measures as outstanding cases are dealt with. Nightingale courts continue to be used to help cope with demand and help the court system to run as effectively and safely as possible during the coronavirus outbreak.”

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Last week the President of the Family Division Sir Andrew McFarlane announced that the new Financial Remedies Courts (’FRCs’) are now ‘live’ across all areas of England and Wales.

For the benefit of those who don’t know, the term ‘financial remedies’ refers to all family court proceedings relating to financial issues. These primarily consist of proceedings relating to the financial settlement on divorce, but also include other types of proceedings, including claims for financial provision for children.

Note that financial remedies does not include child support maintenance claims, which are dealt with by the Child Maintenance Service.

Until recently, financial remedy applications were all dealt with by the local family court. However, in 2016 it was suggested that a national network of specialist courts be set up to deal with financial remedy cases. A pilot scheme was then set up in 2018, to test the idea.

The pilot has now been successfully completed, and the President says that “the FRCs should henceforth be regarded as an established and permanent part of the Family Court.”

But what does this mean for anyone involved in a financial remedies case?

Well, the big thing is that word ‘specialist’. This means both that FRCs are particularly ‘geared’ to deal with financial remedy cases and, in particular, that the judges dealing with the cases will be specialists in financial remedy work.

This in turn should mean that financial remedy cases should in future be dealt with more efficiently, and with better, more consistent, outcomes. Such consistency should also make it easier for lawyers to advise clients, thereby making it more likely that cases can be settled without having to go to court.

Lastly, it should be noted that there are still two types of family-related financial cases that are not currently dealt with by FRCs. These are trusts of land cases (usually involving property claims following the breakdown of cohabitation) and Inheritance Act cases, where a claim is made against the estate of the deceased, often by a family member.

However, the President has expressed the hope that both of these types of case will, in due course, also be dealt with by FRCs.

Whatever type of financial remedy case you are involved in, you should seek expert legal advice. We can find you an expert lawyer 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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The family courts are, of course, open to all, irrespective of means or social status. However, a new piece of research indicates that the users of the courts are not spread evenly across all strata of society.

The research was carried out by the Nuffield Family Justice Observatory, which aims to support better outcomes for children, by improving the use of data and research evidence in the family justice system in England and Wales.

The research examines trends in demand by parents in England for the family courts as a means of resolving disputes over arrangements for their children.

The research found that separated parents in England who depend on the family courts to resolve such disputes are likely to live in the country’s most deprived areas. It also revealed a clear north-south divide in the number of applications being made, with rates being consistently highest in the North East, North West and Yorkshire and Humber regions, and consistently lowest in London and the South East.

The figures showed that in 2019/20, 30 per cent of applicants lived in the most deprived 20 per cent of the wider population, whereas just 13 per cent lived in areas in the least deprived 20 per cent.

The research also showed that in 2019/20, application rates in the northern regions ranged between 79 and 81 per 10,000 families with dependent children, but were just 44 per 10,000 in London and 59 per 10,000 in the South East.

And despite these findings, there was also evidence of a ‘justice gap’, due to the abolition of legal aid for most private law family matters (i.e. cases not involving social services) in 2013, with a reduction in the proportion of applications brought by people living in the most deprived areas.

Commenting upon the research the President of the Family Division Sir Andrew McFarlane said: “The body of individuals who come to court with private family law problems are disproportionately represented from areas of which that are the most socially deprived… More cases come from the north of the country than the south. Should we be targeting our resources, attempt to engage with people before they come to court in a more specific way that meets the needs of those groups? I think so. Knowing something about who they are from this research is helpful.”

And the Observatory says: “It is critical that policy makers consider the role of deprivation as a factor in private law cases and its interaction with other factors such as conflict, domestic abuse and other child protection issues. This will be an important step in informing, and possibly reshaping, the response to private law need in both the court and out-of-court context.”

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It is sadly not uncommon for issues of alleged domestic abuse to be raised in applications relating to arrangements for children. For example, a father may apply to the court for contact, only to have the mother oppose the application on the basis of allegations that he had been ‘guilty’ of domestic abuse.

Obviously, the court must investigate the allegations, and decide whether they have a bearing on the issue of contact. But it is a fine line to tread: on the one hand, such allegations must be taken seriously, on the other hand the court must not allow false or exaggerated allegations to interfere with the child’s relationship with (in the above case) their father.

The question of how the family court should approach domestic abuse in cases involving arrangements for children is currently being considered by the Court of Appeal.

Last week the Court of Appeal heard four linked appeals by mothers involved in proceedings relating to their children, in which the mothers had raised issues of domestic abuse. All four mothers raised concerns about how the court below had approached those issues.

As the four cases raised similar questions, it was decided that the Court of Appeal should hear them together.

The hearing has now ended, and the Court of Appeal is expected to hand down its judgment in the next few weeks. If it considers it necessary, it may also provide further guidance upon how the courts should approach the issue of domestic abuse in cases involving children.

There is already guidance that the courts should follow. This requires the court to consider at all stages in children proceedings whether domestic abuse is an issue, and if it is to investigate the matter at the earliest opportunity, and decide what effect, if any, it should have upon arrangements for the children.

However, there are some who believe that the guidance is not being followed, or that it does not go far enough.

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Domestic abuse is obviously a very serious issue in cases relating to children, which can have a significant bearing upon the outcome of the case. Accordingly, whether you are the victim or the alleged abuser you should seek expert legal advice, at the earliest stage. 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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As we are sure all will agree, 2020 has been an awful year for everyone. Thankfully, however, there is reason to hope that 2021 will be much better.

And so it is in family law.

The pandemic and resulting social distancing rules hit the family justice system, just as it did every other aspect of society. Court buildings were closed, and judges and court staff had to rapidly adjust to the widespread use of remote hearings, via telephone or the internet.

Whilst the family courts and all involved in the family justice system rose heroically to meet this enormous challenge, inevitably the same volume of hearings could not be dealt with, leading to an increasing backlog of cases.

And justice delayed is a tragedy for all of those families affected, who cannot move on with their lives. This is especially so for the children who have to wait for major decisions to be made about their lives.

But, as with life generally, there is reason to hope that things will be better next year.

Firstly, as we reported here just last week, plans are already afoot to catch up with the backlog of cases. It is, of course, a huge task, and it may well not be completed next year, but hopefully during 2021 there will be a significant improvement in the length of time that it takes for cases to be dealt with.

Another reason for an improvement is that hopefully many court buildings will be reopening, as the danger from the pandemic subsides. This will obviously mean that it will be possible for more hearings to take place in court, rather than remotely.

And it is not just recovery from the pandemic that we can look forward to. There are other reasons to hope for a better family justice future next year.

In particular, no-fault divorce is expected to be enacted in the autumn, the biggest reform to our divorce laws for fifty years. At last we will do away with the need to hold the other spouse responsible for the marriage breakdown in order to get a divorce, and instead be able to concentrate on resolving the important issues such as child arrangements and finances, in a blameless atmosphere.

We wish all who are reading this a safe and happy Christmas, and a better future in 2021.

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The Family Justice Board, which oversees and directs the family justice system, has produced a statement that summarises the priority actions it intends to pursue in response both to immediate pressures within the family justice system, and to bring about longer-term reform.

The Board says that increasing numbers of children have experienced delay to the court proceedings in which major decisions will be made about their lives. Backlogs in private law cases (i.e. children cases not involving local authorities) have increased by 18% since before the start of the March lockdown. For those cases being heard, the average time to conclude a case is now 29 weeks.

HM Courts & Tribunals Service (‘HMCTS’) estimates that private law cases may not return to pre-Covid levels for another three years.

The Board reports that to deal with these issues HMCTS has recruited approximately 900 additional support staff, with currently around 700 further appointments sought; that approximately £3.5m additional funding has helped Cafcass, which looks after the interests of children involved in family proceedings, increase staffing levels to respond to record levels of open cases; and that a programme of recruitment to increase judicial capacity is ongoing.

The Ministry of Justice has also announced additional ‘Nightingale’ courtrooms, to bolster the national effort to tackle the impact of coronavirus on the justice system.

As to the future, the Board says that immediate recovery priorities include “changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.”

Where appropriate, couples will be encouraged to resolve disputes out of court, for example via mediation, thereby reducing the pressure on the court system.

Another way that pressure may be reduced is by more hearings being dealt with by the court ‘on the papers’, without the parties having to attend court.

Longer term reform plans include a revised system to deal with private law cases, in which issues are identified at an early stage in cases, so that the appropriate resources are allotted to each case. Where relevant, courts will also utilise a ‘problem-solving’ approach to the resolution of cases, whereby the court looks at ways of resolving problems faced by separating families, such as drug and alcohol abuse.

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It goes without saying that family court proceedings can be expensive. Obviously, this can put a less well-off party at a serious disadvantage, with their opponent being able to afford to pay for legal representation, while they cannot.

Legal aid is not available for most types of family law cases, and many people have no other way of funding their legal expenses. What can they do to put themselves on an equal footing?

There may be another source of funding, and it comes from an unexpected direction: the other party. It is possible to ask the court to order the other party to pay a lump sum to cover your legal costs of the proceedings.

We have seen this happen in two recent cases.

The first case concerned a husband’s application for a financial remedies order on divorce. The wife was considerably better off than the husband, who could not afford legal representation. He therefore applied to the court for a legal services payment order, requiring the wife to pay a lump sum to cover his legal expenses. The court made an order that the wife pay the sum of £95,000, to include £58,000 costs already incurred by the husband.

The second case concerned a mother’s application for financial provision for her daughter from the child’s father. The father was considerably better off than the mother, and could not afford legal representation. She therefore applied for a legal costs funding order, requiring the father to pay a lump sum to cover her legal expenses. The court made an order that the father pay the sum of £60,000.

But a word of caution: these costs orders are quite unusual, and will only be made in certain circumstances. In particular, the party applying for the order must satisfy the court that they have no other means of financing the case, and that the order will not cause the paying party undue hardship.

The party applying for the order must also bear in mind that at the end of the case the court may require them to repay such part of the payment as it considers appropriate.

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If you would like to know whether you could apply for a legal costs funding order we can find an expert to advise you, working 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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Remote hearings, via telephone or video link, have become the norm for family courts, since the introduction of social distancing restrictions in response to the Covid-19 pandemic. Obviously, this has been a huge new departure for the family justice system, and it is essential to ensure that the hearings are delivering effective justice, and working as well as possible.

Back in May we reported here upon an early inquiry into the effectiveness of remote family court hearings, which was commissioned by the President of the Family Division and carried out in April by the Nuffield Family Justice Observatory.

In September the Observatory carried out a follow-up enquiry into remote hearings, in which it surveyed some 1,300 people with an interest in the family justice system, including parents, family members and professionals.

The survey found that most professionals (86%) felt that things were working more smoothly than in April, and some even reported benefits to working remotely, such as not having to travel to court and not having to have hostile parties face each other in court.

However, they shared concerns about the difficulties of being sufficiently empathetic, supportive and attuned to lay parties when conducting hearings remotely, although more than three quarters (78%) felt that most or all of the time fairness and justice had been achieved in the cases they were involved with.

On the other hand, a majority of parents and relatives (88%) reported having concerns about the way their case was dealt with, and two thirds (66%) felt that their case had not been dealt with well. Two in five (40%) said they had not understood what had happened during the hearing.

There was agreement between professionals and parents that family justice is not simply administrative adjudication but is dealing with personal and often painful matters which require an empathetic and humane approach, and both expressed concern about the difficulty of creating an empathetic and supportive environment when hearings are held remotely.

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

“We cannot put the lives of thousands of children and families on hold while we hope for face-to-face practice to resume, and it’s clear that judges, barristers and other professionals have put in enormous personal effort to keep the system moving during very challenging times.

“But equally life-changing decisions must be reached fairly for all involved. The family court is often dealing with incredibly vulnerable people, from victims of domestic abuse to mums being separated from their babies, and they must be supported to fully participate. Our consultation showed great concern among professionals for the experience of traumatised parents facing the system. It also highlighted that many of the issues could be solved with relatively simple measures.”

It is now clear that social distancing restrictions will be with us, in one form or another, for many months to come. Remote hearings will therefore remain the norm for the foreseeable future, and it is for everyone involved in the family justice system to ensure that they work as well as possible.

If you have concerns about how your case will be dealt with, then Family Law Café can put you in touch with an expert family lawyer who can advise you, and work 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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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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The legal world is changing, perhaps more quickly than ever in history. Ways of doing things, written in stone for decades, if not centuries, are being swept away.

The Covid 19 pandemic may have accelerated them, but these changes have been underway for some time, and are surely inevitable.

We are talking about the move towards conducting family law work online. We are seeing this in particular with remote court hearings due to the pandemic, but before the pandemic there was already a move towards making applications to the court online.

Until recently if you wanted to make an application to the court you had to do so on paper. You then either had to go to the court to issue it, or you had to post it to the court. All of which involved unnecessary work and delay – for example, if the court was not happy with the paperwork, it would post it back to the sender, the sender would have to amend it, and then return it to the court.

Now the age of paper applications is coming to an end. One of the latest manifestations of this is the online child arrangements application.

Back in February the Ministry of Justice and HM Courts & Tribunals Service (‘HMCTS’) launched a new online service enabling parents and their legal representatives to apply to the court digitally to make child arrangements.

The new service is more convenient, faster and avoids many of the errors or omissions that paper applications used to contain, by picking them up during the online process. When it was launched Richard Goodman, HMCTS Change Director commented:

“For parents, it can often be a stressful, challenging time when trying to arrange visits to see children and this system is designed to make that process as straightforward as possible.

“As the court reform programme progresses, we will continue introduce services that make the justice system easier to navigate and more efficient for all those that use it.”

It is already possible to issue divorce proceedings online, and soon almost all family law business will be conducted online (although many hearings will take place in court buildings again, once the pandemic is over).

All of this of course fits in perfectly with Family Law Cafés vision of how family business should be conducted in the twenty-first century. There is no reason now why family law litigants should be required to physically contact their lawyers every time they need information or advice regarding their case, or to rely on the postal service when they wish to take a step in the proceedings.

The modern way to conduct a family law case is online, from wherever you are, whenever you wish.

If you require advice regarding sorting out arrangements for children, Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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As any Family Law Café customer will know, technology can be a blessing, reducing the stress involved in family disputes, by ensuring that you can request answers to questions and have access to documents, whenever you wish, and wherever you are.

But technology can also be a curse if its user is not careful, as a High Court judge recently discovered.

Mrs Justice Judd was dealing with a very sad child care case in which the child’s brother had died after suffering a catastrophic head injury. A fact-finding hearing was fixed, for the court to decide who, if anyone, was responsible for the injury.

The hearing was a ‘hybrid’ one, as are many hearings during the pandemic, taking place with some parties in court and other parties taking part remotely, via video link.

The child’s mother appeared in court. In the course of her evidence she complained of feeling unwell, on one day with back pain and blurred vision, and on the next day she said she had developed a cough. The hearing was stopped, and the mother allowed to go home.

The judge then returned to her room, and her laptop was brought to her. The judge then had a conversation with her clerk on the telephone, in which she made pejorative remarks about the mother, suggesting she was feigning illness to avoid answering difficult questions.

Unfortunately, the conversation was heard by the parties who had been taking part in the hearing remotely, as the video link on the laptop was still open.

The mother asked Mrs Justice Judd to recuse (i.e. excuse) herself from the case on the basis of bias. However, Mrs Justice Judd refused. The mother appealed against that decision.

The Court of Appeal allowed the mother’s appeal, finding that Mrs Justice Judd’s remarks about the mother would lead a fair minded observer to conclude that there was a real possibility that she was biased.

Accordingly, the case was remitted back for rehearing, before a different judge.

The case is obviously an example of when a judge should recuse themselves for possible bias, but it also has a moral for all of us: when using technology, make sure that anything that is private or confidential remains just that. Whatever technology you use for such matters should be kept secure, and if necessary password-protected. And remember to log out of secure sites like ours when you have finished using them!

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Photo by Kari Shea on Unsplash

The Ministry of Justice has announced a ‘major overhaul’ of how the family courts deal with domestic abuse.

The overhaul is in response to a report by a panel of experts which looked at the risk of harm to children and parents in cases involving disputes between parents about the arrangements for their children. The panel raised concerns that victims of domestic abuse and children were being put at unnecessary risk.

The new measures announced by the Ministry included:

– Giving an automatic entitlement for special measures in the courtroom for victims of domestic abuse going through the family courts, such as separate waiting rooms, separate building entrances and protective screens to shield them from their alleged abuser in court.

– Giving judges stronger powers to prevent abusers repeatedly dragging a victim back to court over child arrangements.

– Trialling an investigative, problem-solving approach in private family law proceedings, in order to reduce conflict. This could see judges decide what evidence to investigate, rather than both parties presenting their cases against each other.

– Reviewing the presumption of ‘parental involvement’ and whether the right balance is struck between the risk of harm to children and victims, with the right of the child to have a relationship with both parents.

Commenting on the measures Dame Vera Baird QC, Victims’ Commissioner for England and Wales said:

“This panel of experts has dug deep to understand, and address, the serious harm to domestic abuse victims and their children caused over many years by the presumption of contact, and the intensely adversarial process present in the family courts.

“With children’s voices rarely heard in these proceeding and even more rarely heeded, victims and children are in need of better protections from abusive perpetrators.

“I welcome the report, its recommendations, and the implementation plan which will help to address these, and other concerns. It has my full support. And I call on the government to action this as a matter of urgency.”

You can read the report here.

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If you would like to know more about protecting yourself from domestic violence and abuse, Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Just like most other areas of society the family courts have been adversely affected by the COVID-19 pandemic. In particular, the lockdown and need for social distancing have meant that many court hearings have had to be conducted remotely.

The President of the Family Division Sir Andrew McFarlane has now published details of how the family courts will operate for the remainder of the pandemic, in a document entitled The Road Ahead.

Perhaps the most important point that the President makes is that it is likely to take much longer than many had hoped for the family courts to get back to normal. Sir Andrew makes it clear that he does not expect this to happen before the end of the year, and perhaps not until next spring.

This means in particular that, whilst all court buildings should be open again by next month, court hearings will continue to be predominantly conducted remotely.

Many people have raised concerns about the fairness of remote hearings, particularly where a party or witness does not have a lawyer. The President made it clear that in such cases consideration should be given to the hearing taking place in court, or to there being a “hybrid“ hearing, where (for example) a parent or witness gives their evidence in court, but the rest of the hearing takes place remotely.

The President has also set out a series of guidelines to ensure that remote hearings are as fair as possible. These include keeping the hearing to a reasonable length, and including short breaks; advocates ‘meeting’ with their client both before the hearing to explain what is going to happen, and after the hearing to ‘de-brief’ their client; ensuring that parties can give instructions to their lawyers during the hearing; and, where the hearing involves a litigant in person, the judge should ‘check in’ regularly with any litigant in person to ensure that they are hearing, understanding and following the proceedings.

The President however makes it clear that remote hearings should always be conducted with the same degree of seriousness and respect as fully attended hearings.

You can read The Road Ahead here.

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The Coronavirus pandemic and resulting lockdown is having a significant impact upon how the family justice system is operating. As we explained in an earlier post, one effect is that court hearings are now being conducted remotely, where possible.

Remote hearings involve one or more of the participants (judges, lawyers, parties and witnesses) taking part remotely, via telephone or video link.

As indicated, it is not possible for all family court hearings to be conducted remotely. This may be because the hearing is not suitable to be dealt with remotely, or simply because the required technology is not available to all participants.

But what is the experience of those who have taken part in remote hearings? Do they think that it is a good or a bad thing?

Last month the President of the Family Division Sir Andrew MacFarlane commissioned an urgent inquiry into the effectiveness of remote hearings used in the family justice system. The inquiry sought the views of interested parties, including judges, lawyers, Cafcass officers and parents. Well over one thousand people responded.

Most of the respondents had taken part in a remote hearing, dealing with various kinds of family cases. The hearings were of all types, including directions hearings, interim hearings and final hearings.

The respondents were asked whether they were broadly positive or negative about their experiences of remote hearings.

There was an even balance in positive and negative responses to remote hearings. This reflected the fact that many respondents felt that remote hearings were justified in some cases in the current circumstances, even when they raised serious concerns about remote hearings in relation to other types of cases.

As to the figures, 22% were positive, 21% were negative, and the other 57% said that there were both negatives and positives about remote hearings. Almost all felt that remote hearings were justified in the current circumstances, although not necessarily for all cases. Some felt that remote hearings were justified for some cases both now and in the future, and only a small number of respondents were against remote hearings in principle.

Notwithstanding the views of some, it does appear that remote hearings will be with us at least until the pandemic is over, and very possibly after that. All users of the family courts will therefore have to be prepared for the possibility of their case, or at least part of it, being conducted remotely (hearings that can’t be conducted remotely will still have to take place in court, subject to social distancing rules).

Of course, they will also have to be prepared to wait longer for hearings to take place, as the courts will not be able to conduct the same number of hearings as they do in ‘normal’ times. Even more reason than usual to try to avoid court by settling your case, and getting expert help as soon as possible.

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The Government has announced that early and late sittings are to be piloted in civil and family courts, “giving people greater access to hearings that can fit around their busy lives.”

The pilots will take place in two court sites: the Manchester Civil Justice Centre and Brentford County Court, and are expected to begin in spring next year. Whereas courts normally operate between 10.00 am and 4.00 pm, hearings in the pilot courts will begin at 8.00 am and end at 7.00 pm.

The pilots will run for six months, “testing whether civil and family buildings can be used more effectively; the benefits of making it possible for people to attend court outside of the traditional 10am – 4pm sitting day; and what more flexibility means for staff and legal professionals.”

Justice Minister, Lucy Frazer said:

“We want to make our courts and tribunals more accessible to the public. This pilot assesses whether and how we can give people greater flexibility in their busy lives.

“We listened carefully to the views of legal professionals and others before going ahead, and as a result flexible operating hours are not being piloted in criminal courts. We will now test different options relating to operating hours in two civil and family courts and an independent evaluation will be carried out before any decisions are made about further roll-out.”

You can read more about the pilot here.

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Image of Manchester Civil Justice Centre by Skip88 [Public domain], from Wikimedia Commons.

A husband involved in financial remedy proceedings has been ordered by a judge not to pay any money to his lawyers, unless he pays an equal amount to his wife’s lawyers.

The husband had previously been ordered to pay the sum of £40,000 for six months, to cover the wife’s legal costs. He failed to do so, claiming that he could not afford to pay. However, he did pay the sum of £95,000 to his own lawyers.

Hearing the case in the High Court Mr Justice Holman said that that it was “intolerable and an affront to justice” that the husband had paid £95,000 to his solicitors, at the very time when he should have been paying the costs order. He therefore made an injunction forbidding the husband from paying any further money to his lawyers, unless he pays an equal amount (i.e. pound for pound) to the wife’s solicitors towards satisfaction of the costs order.

The husband’s counsel objected to the order, claiming it denied the husband the means of obtaining legal advice, which he submitted was contrary to principle and impermissible. However, Mr Justice Holman said that the injunction was not intended to deny, nor was it denying, the husband the means of obtaining legal advice – he could go straight out and pay £100,000 to his lawyers for further legal advice, the only condition being that he also paid pound for pound £100,000 to the wife’s solicitors.

The injunction is an interesting way to try to force the husband to pay the costs order. It will also be interesting to see if the husband will appeal against it, particularly as some legal experts are unsure as to whether Mr Justice Holman had the power to make such an order.

You can read the full judgment in the case here.

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Image: ‘Money Scales‘, by Images Money, licensed under CC BY 2.0.

Two recent cases demonstrate how you should not behave if you are involved in family court proceedings (or, indeed, in any type of court proceedings).

The first case, which caused a considerable stir in the media, involved an 83 year-old man being committed to prison for 14 months, for failure to comply with court orders.

In June 2015, as part of a financial order on divorce, the court ordered that John Hart should transfer to his ex-wife Karen all his shares in a company, and he gave an undertaking to the court to take the necessary steps to render the transfer effective. However, he delayed the transfer without justification, and then stripped out all of the management records of the company, thereby making it impossible for Mrs Hart to manage the company efficiently or effectively.

The court made orders requiring Mr Hart to provide Mrs Hart with the information and documentation she needed to run the company, but Mr Hart failed to comply with the orders. His Honour Judge Wildblood, sitting as a High Court judge in Bristol, told Mr Hart that he had not done what he was ordered to do, despite the clearest possible warnings, and he therefore committed him to prison for contempt,

The moral of the case is clear: no matter who you are, you must comply with orders of the court!

You can read the judgments in the case, here and here.

The second case was not so well reported, but it also provides a lesson in how you should not behave when dealing with the court.

The case also concerned long-running financial remedy proceedings. Over a period of some three months the husband bombarded the court, the judge’s clerk, the wife’s solicitor and the wife’s barrister with “an extraordinary volume of emails” including 27 to court staff, 36 to the court’s generic email address, 26 to the judge’s clerk, 26 to the wife’s solicitor and 5 to the wife’s barrister.

The judge, Mr Justice Mostyn, was asked asked to make an order restraining the husband from communicating with the wife’s solicitor on her private email address. Mr Justice Mostyn said that it was “completely unacceptable that this form of harassment should take place”, and was therefore satisfied that it was appropriate to grant the order.

You can read the judgment in this case here.

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Image: The Civil Justice Centre, Bristol, by Robert Cutts, licensed under CC BY 2.0.

In a speech given at the Law School, University of Edinburgh, on 20 March the President of the Family Division Sir James Munby outlined his views on the future of family courts, and reform of family law.

The speech, entitled Changing families: family law yesterday, today and tomorrow – a view from south of the Border, began with an outline of the history of family law in England and Wales since Victorian times. Sir James then moved on to what he called “perhaps the greatest challenge facing the family courts”. This, he said, was the need for family courts to become problem-solving courts, dealing with the underlying issues behind children disputes, rather than just deciding what should happen to the child in future. What was urgently required, he explained, was:

“…a fundamental re-balancing of the family court towards what ought to be its true role as a problem-solving court, engaging the therapeutic and other support systems that so many children and parents need.”

Sir James then concluded his speech “by examining a few of the parts of family law most pressingly in need of statutory reform.” These included the introduction of property rights for cohabitants, no-fault divorce, reform of the law relating to financial remedies on divorce, reform of the rules about access to and reporting of family cases (to counter the charge that we operate a system of secret justice), and giving judges the power to prevent the cross-examination in person by alleged perpetrators of domestic violence of their alleged victims.

Family Law Cafe welcomes all of these ideas, and hopes that they come to fruition in the near future.

You can read the full speech here.

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Image of Old College of Edinburgh University by Kim Traynor (Own work) [CC BY-SA 3.0], via Wikimedia Commons.

An annual survey of family lawyers by business advisers Grant Thornton has found that the top issue facing family law is the increased number of litigants in person, due to the lack of public funding (legal aid). This is the fifth year running that this issue has come top of the survey. Legal aid for most private family matters was removed in 2013.

The second biggest issue was the overburdening of family courts and delays resulting from court closures, and the third biggest issue was courts not being fit for purpose.

Nick Andrews, Head of Disputes at Grant Thornton UK LLP, commented: “With our results showing a continued dissatisfaction with the family court system, it will be interesting to see whether the proposed Financial Remedies Courts will have any impact on this.”

Amongst other things, the survey also asked what were the most common reasons for the breakdown of marriages. Top of the list came growing apart or falling out of love, followed by extra-marital affairs and unreasonable or controlling behaviour.

You can read the full survey here.

Family Law Cafe agrees that the family court system is in an unsatisfactory state, suffering from an increase in the numbers using the courts, many of whom are litigants in person, and a lack of proper investment. Hopefully, new initiatives such as online divorce and the new Financial Remedies Courts will improve matters.

As to the reasons for marriage breakdown, Family Law Cafe looks forward to the day when we have a system of no-fault divorce, so that the law is no longer concerned why the marriage broke down, at least for the purposes of divorce. We note, incidentally, that respondents to the survey also indicated that the introduction of no-fault divorce was the change in legislation that they would most like to see.

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Image: Grant Thornton

HM Courts and Tribunals Service (‘HMCTS’) has published a brief giving an update on plans for modernising e-working in the family jurisdiction.

The brief explains that the project to bring in an online divorce system is progressing well, and that a variety of digital systems have been implemented locally, including using electronic files instead of paper files, a system that enables the filing of electronic documents by email, and ‘e-bundling’ systems that produce an electronic bundle of documents that can be emailed directly to parties, staff and judges.

HMCTS says that their “overall vision is to have, wherever possible, paperless processes from issue to resolution across civil, family and tribunals jurisdictions.” As a first step towards this they are introducing a shared storage system, in which documents and evidence will be filed electronically with the court. They are also “aiming for the solution to include viewing of these documents in the courtroom to enable some rudimentary in court digital presentation of evidence.”

Next steps that HMCTS propose to take include further visits to courts, judges and local authorities, as they look more closely at specific systems, and assess the implications of the changes they intend to bring about over the next year.

You can read the full HMCTS brief here.

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Image: Computer, by Victor, licensed under CC BY 2.0.