Practical experience of delay and whether there is access to justice
1. We have previously submitted evidence to the Justice Committee that delay in the family courts is the top issue consistently reported by our members. In light of Covid-19 there will be even longer periods of uncertainty for many couples, parents and their children, with lives on hold.
2. We recently asked our members:
• to provide any practical, real life examples of the impact on their clients of additional delay caused by the Covid-19 pandemic; and
• whether there is appropriate access to justice post-Covid-19.
3. What some of our members have said is annexed.
4. In all the current circumstances we support HMCTS’s focus for recovery in the family jurisdiction on encouraging take up of online channels; and seeking to increase capacity for socially distanced physical hearings of complex contested cases not suitable for remote hearings. But, from our members’ feedback, access to justice is not currently available for many families using the family courts.
Long term solutions to reduce delay in cases (coming to trial)
5. Covid-19 will clearly have a long lasting impact on family court backlogs and processes. We agree that online processes, and digitisation of the court estate, have an important role to play but are not the whole or only solution. A one-size-fits-all approach or remote services across the board in family and children proceedings would not be right.
6. Resolution strongly encourages our members to use online processes where available. Online divorce and the online finance remedy consent order process are having a welcome and positive impact on avoiding delays and some of the consequential difficulties. We hope that HMCTS is able to complete improvements to the online process where one or both parties is legally represented as soon as possible. Divorce is of course effectively a discrete administrative process where it is extremely unlikely that the matter will be defended or that the parties will need to attend court. Parties rarely, if ever, need to attend the court building about finance consent orders and the nature of the process is consensual. Those cases needing a final or other substantive hearing, or the court’s input for settlement, need to be both digitally supported and have access to the court and in person hearings as necessary with speedier scheduling and listing of such.
7. Longer term solutions require more radical reform and appropriate investment in both early family support and legal advice (to help people understand their legal rights and responsibilities and where court is inappropriate, manage expectations on outcomes and as a point of referral away from or to court), and in the family justice system as a whole. Otherwise, the volume of private court applications won’t lessen and the family court system will continue to struggle to meet demand, and the challenges of dealing with unrepresented parties. This was a pre-Covid-19 problem which we fear the impact of the pandemic will only exacerbate.
8. Resolution members and other family lawyers of course have their part to play in using their problem solving skills, encouraging use of the courts in the right way and not adding to court backlogs where that can be avoided; and guiding clients through all the options available to them is an important part of the Resolution Code of Practice. Nevertheless, many users of the family courts are litigants in person and may be unaware that the outcome they want from the court will not be achieved or speedy.
9. It is also recognised that, in the absence of a requirement for the respondent also to attend a statutory Mediation Information and Assessment Meeting (MIAM) and a sufficiently robust framework and application, the MIAM has unfortunately not steered families away from court as envisaged. Resolution expressed concerns from the outset about the MIAM title and the primary promotion by government of one option to the public, mediation. We believe that many parents are potentially uncertain about the purpose of the MIAM and sometimes wrongly think that their only options are mediation or issuing a court application. Mediation is an important and successful dispute resolution process in suitable cases. But the collaborative process, round table negotiations, arbitration (both the children and money schemes) and private FDRs may be more suitable or alternative options in some cases. Access to a range of information and assessment from a range of suitable professionals at any stage before or during separation, to increase the source point of access and numbers who receive information and are diverted from court, is needed.
10. Resolution has long called for the extension of the availability of legal aid to a wider range of dispute resolution than mediation only. People should be able to choose which out of court method will be most suitable for them. In response to the impact of the pandemic, we understand that HMCTS and the Ministry of Justice are considering a ‘voucher scheme’ for mediation in certain circumstances. Consideration should be given to the inclusion of other out of court dispute resolution processes, including family arbitration and collaborative law, in any such scheme, as these are additional ways to reduce the burden on the family courts. Resolution members also help clients reach agreement through solicitor negotiation, roundtable discussions and other processes, and we would welcome consideration of government support for these methods as a way of helping reduce the pressures on courts.
11. Further family court closures are not a solution. Combined with the scope and availability of legal aid, such would limit the accessibility of the family justice system at a time when it is already struggling to cope with people suffering financially or emotionally as a result.
12. We are helpfully informed by the Ministry of Justice that there are no current plans to use extended operating hours in the family courts, albeit this is being kept under review. We appreciate that our members will be working in different ways as we look to recover from the pandemic, and will carefully consider the awaited evaluation of the pre-existing but limited family flexible operating hours pilot conducted in Manchester. For many reasons, we do not think that extended operating hours would be a good response to the impact of Covid-19 in the family jurisdiction.
Examples of the impact on Resolution members’ clients of additional delay caused by the Covid-19 pandemic (submitted to Resolution on w/c 31 August 2020)
1. Private law applications that are allocated to Magistrates are suffering real delays. An applicant can wait 2 months for a first hearing, and the first hearing will only have a legal advisor present and no magistrates to impose a decision e.g. contact stopped in March by one parent allegedly due to Covid-19. Application made to the court in June, no hearing until 10 September, and at that hearing matter is before legal advisor only so unlikely that a decision can be imposed despite Family Procedure Rules stating that robust case management is necessary at an early stage. Matters listed before District Judges are better, as they are more likely to make robust decisions. A legal advisor without a Magistrates’ bench cannot make decisions on contact. This is at Swindon Family Court. My client is going to be left without contact with his son, for no justifiable reason for 5.5 months at the very least.
2. A case that was listed for a 2 day fact find at a hearing on 6 April, was listed for hearing on 1 and 2 February 2021. That has now been brought forward to 1 and 2 November, but still a 7 month delay for a fact finding hearing. In the meantime, no contact takes place. This is at Winchester Family Court. This does not affect my client directly, but does impact the father.
3. FDR originally listed in April 2020, as a result of Covid the hearing was adjourned to a “date to be fixed”, no further hearings listed as yet. Client is suffering with severe depression and needs a resolution. Other party is not responding to correspondence and simply waiting for the court to relist and will not respond to proposals for ADR in the interim. No likelihood of resolution for client for a number more months. No option other than to wait for the court to relist. Extremely detrimental to client’s mental health.
4. Private Children Act application made in January 2020 on behalf of father being prevented from seeing 1 year old child where mother insisted on supervising all contact and reneged on mediated agreement to move towards unsupervised. Relationship seems to be one of mother controlling father. Upon father applying, mother threatened to destroy father’s relationship with child and ruin his life. Despite previously allowing contact, mother responded to father’s application with disputed allegations of domestic abuse and drug and alcohol misuse. As a result of Covid, mother has insisted on all contact being indirect via facetime – not appropriate for a 1 year old and mother does not encourage child to interact with father. Further remote directions hearings have been adjourned of court’s own motion with no explanation. Mother is setting up status quo as one of indirect contact only. It will be a number of more months before court can hear Fact Finding and move forward with any direct contact. Child has now not seen father for approximately half of her life.
5. Form A issued in March 2020, not actioned by FRC until July, FDA listed in late October. Parties had already attended mediation and agreed re pensions but no agreement on capital division. Case is suitable to use FDA as FDR. Other party remains in mortgage-free FMH, client is renting. Case is one where FMH will ultimately to be sold with sufficient capital for both to rehouse. We have suggested ADR by way of Private FDR/Arbitration but other party resisting and there is no way to compel this. By the time the FDA takes place other party is likely to want pensions to be reopened.
6. Cohabitation dispute where other party, a LiP is delaying. When we attempt to move matters forward LiP attempting to rely on Covid (alleged symptoms therefore self-isolation); school closures; lockdown; inability to obtain legal advice to continue to delay matters.
7. Generally, although ADR is encouraged, locally (West Midlands/Warwickshire) other than MIAMS, there is little impetus to attempt other ADR. Delays in listings are being taken advantage of by the party wanting to extend the status quo.
8. A matrimonial finance final hearing has been adjourned from the 1st June 2020 to the 4th January 2021 causing considerable financial hardship to the wife.
9. First Appointment listed at beginning of April, hearing vacated because of Covid-19, no option for a telephone/video hearing. New date is January 2021, delay of 9 months. Tried to progress matters out of court, but not possible due to various issues and parties not agreeing, hence why we are at court in the first place. Nothing client can do in meantime, so on hold for another 4 months until we can get orders at First Appointment.
10. I phoned on 2 September Liverpool Court where we sent a financial consent order on 5th March 2020. They tell me that it was sent out to Leicester Court to help deal with their backlog but that was in March and they are surprised that nothing further has been done. My client is waiting for his money and paying debts in the meantime.
11. On 2.9.20 I phoned the central number for divorce enquiries, a contested financial application had been listed in Wolverhampton but vacated due to a settlement, and consent order filed on 20th March. The order was sent out to the judge on 26th August.
12. Matter listed last July 2020 for FDR, 2 day final hearing in January vacated due to judge having medical appointment, hearing end April vacated due to Covid, still waiting for hearing date, huge costs increase for my client, after constant demands for updating disclosure from the other party.
Is there access to justice?
1. No, the judiciary have done their best to deal with matters during Covid. The hearings are conducted as well as they can be. More need to be conducted by video rather than telephone if possible. The issue now is that there is a huge backlog of straightforward cases, which should be able to be dealt with at a first hearing, that are not due to there being so many applications. In addition, the requirement for fact finding hearings in private law proceedings has increased and it is meaning that there are tremendous delays in listing these matters. More Judges are needed to sit to clear the backlog and to enable the courts to return to as close to normal as possible.
2. No, delays as set out above and parties using the delays tactically, with little likelihood of any real sanctions when the matter does make it to court.
3. No, the family court at Bury St. Edmunds is taking around 20 weeks to give a date for a Decree Nisi and to approve a Consent Order. Often the party with the funds refuses to pay the agreed settlement until the Consent Order is sealed and the delays are causing considerable financial hardship for parties.
4. No, often clients have tried every other option before making an application to court, so by the time they go to court they want the court timetable to ensure matters progress. Often court hearings are the only way to progress matters where directions cannot be agreed, or an FDR is needed to help settle. The delay in court hearings caused by Covid-19 is halting the progress and meaning clients’ lives are put on hold.
5. No, the courts have struggled to get matters listed again.