Vision for Family Justice: Finding solutions for families both in and out of court

Juliet Harvey, National Committee Chair

Resolution’s Vision for Family Justice was launched by Grant Cameron at National Conference earlier this year. If you have not yet read the document, please do, as it sets out Resolution’s blueprint for the future.

Whilst focusing on what might lie ahead, I know for many members and the families that we work with, what is important for them is what Resolution is doing to support families going through separation now. We know that many courts are suffering from huge backlogs (I heard last week that one court has a 50-week delay on answering emails, and I often get despairing emails from members complaining about long waits for hearings, particularly in private law children and financial remedy cases).

Whilst we now have a new government in place, it is clear that they have inherited a substantial deficit and it seems that there is no defined budget to help bolster the Court Service and replace the staff and facilities that have been eroded over the last five years or so of austerity measures, court closures and experienced staff leaving the service. Whilst we ask in the Vision document for a commitment that there will be no further court closures, the reality is that the days of a manned court enquiry desk, or even the ability to ring the court and speak to staff have gone, and many of us are relegated to speaking to centralised staff or communicating via webchat/webforms and submitting court processes via court portals that seem clunky and glitchy, and certainly not designed to improve the (legal professional) user experience.

So has the time come for us all to reframe how we deal with clients and save court for those cases that genuinely need it, such as where there has been domestic abuse so that NCDR approaches may not be safe or appropriate, or where there is an urgent need for protection (either for clients or assets)? Resolution has excellent courses on domestic abuse, screening and safeguarding – please see the training and events calendar for details

Resolution has long been at the forefront of developing, promoting and training in NCDR approaches. Are we failing our clients if we do not skill up and educate them about the advantages of resolving issues away from the court? With the updated Family Procedure Rules this year, there is a clear duty on us to ensure that our clients understand what is expected of them so far as NCDR is concerned and also that we must inform them of all NCDR processes and how they work. Are you confident about all non-court-based processes? Can you recommend or describe to your clients how collaborative practice, arbitration, mediation or early neutral evaluation work? To help members skill up, Resolution has developed an online course introducing NCDR processes. The course can also help with understanding how clients can move from one process to another to resolve separate, discrete, issues.

By diverting clients (where appropriate) away from court and contested proceedings, we can help them to create bespoke solutions for their families. We know from research that families who are able to create their own solutions, rather than asking a court to decide for them, have better outcomes and report higher satisfaction levels. If we can free up court time to deal with those who need a decision or protection from the court, we may be able to speed up the passage of those (needy) cases through the court.

For those cases that have been issued and are waiting for hearings, consider whether arbitration, or a private FDR might provide a quicker resolution for the parties. Often the additional cost of a private FDR judge or arbitrator is outweighed by avoiding delay and the risk of a “bumped” hearing (how many of us roll our eyes when we get a listing only to read that it will be confirmed the day before – leaving our clients liable for deemed brief fees even if the hearing is “vacated due to judicial unavailability”). For many clients, the prospect of waiting months for a hearing is a huge emotional burden. We must now consider with clients at every stage of the case whether to stay the proceedings to refer out to a private FDR or move to arbitration, and also advise them of the potential cost consequences of (unreasonably) failing to participate in NCDR.

At Resolution we continue to have very regular meetings with the MoJ, HMCTS and senior judiciary. Grant attends fortnightly meetings with the President and/or Keehan J, alongside other leaders of family justice organisations. These meetings are not only a chance for the senior judiciary to pass on information, but importantly provide a forum for an – often frank – exchange of views and an opportunity for us to pass on the issues that we all encounter “at the coalface” in courts across the country. At our Regional Liaison Committee meetings we regularly discuss court issues and compare how matters are dealt with in different parts of the country, making it clear that it is, sadly, a postcode lottery as to how quickly cases are listed in your local court, or how long it takes for correspondence to be answered.

Resolution is regularly asked to comment on government consultation papers. Rachel Rogers, our head of policy, liaises with various committees and produces many consultation responses each year.

Our members sit on the Family Procedure Rules Committee and are invited to speak at Select Committees, at Parliamentary events and at party conferences. We regularly attend stakeholder meetings with the relevant portal leads at HMCTS to discuss any issues with the portals, to consider and test any proposed changes/improvements, and – importantly – to update you, through our regular bulletins and social channels.

We work with the courts to understand the most common reasons for rejected processes and deliver tips to help you to get it right first time, which in turn smooths the work flow through the courts. We have helped to tweak some processes or change wording on portals in response to member comments. Whilst we can disseminate information to members, it is important that all members read and digest the regular updates and also consult the online guides prior to issuing any portal process. See How to use Online Divorce Services and How to use Online Financial Remedy Services, both available at www.gov.uk/government/publications.

The law around divorce and families has changed dramatically since John Cornwell and a number of other family lawyers formed Resolution over 40 years ago. The court system and the court estate have not kept pace with those changes. Resolution has continued to stay abreast of all changes and deliver information and training to members, enabling them to work with clients to find “a better way”.

Our Vision for Family Justice part 4: Ensuring the family courts meet the needs of families

This part of Resolution’s Vision for Family Justice looks at ways we can work around the broken family court system, with its huge delays, unpredictable schedules and lack of staff. The Vision sets out four main asks:

• There should be no further family court closures, and resources should be made available to ensure a smooth-running, accessible, responsive court service.
• Online processes need to be evaluated on a case-by-case basis and not seen as a one-size-fits-all solution.
• Contested financial remedy cases under a certain value should be fast tracked, with an emphasis on fewer hearings and shorter timescales.
• Links to Resolution and Law for Life’s Affordable Advice Service should be provided to all litigants in person in the family court, and via online court services.

We are hugely grateful to Juliet Harvey for her tireless work in this area, and for setting out the issues here. It is also great to see in this issue how members continue to develop and hone NCDR processes and skill sets in order to offer clients something faster, something self-authored, and something more bespoke to their individual circumstances. A huge thanks to Elaine Richardson, Rebecca Hawkins (and her collaborators), Nigel Clarke and Chloe Oudiz for various pieces from the cutting edge of NCDR.