National proposal on the provision of court and tribunal estate in England and Wales: Resolution’s response to the Ministry of Justice and HMCTS

Question 1: Do you agree with the proposals? What overall comments would you like to make on the proposals?

No. We cannot agree with the proposed closure of all the courts specified in this consultation and the regional consultations.

The proposed closures, combined with legal aid reforms and the further proposed increases in court fees, will further limit the accessibility of the justice system. Many of those going through separation and divorce are already struggling to know where to turn following the legal aid cuts which took effect in April 2013.

Based on feedback from our members, we are not satisfied that sufficient or correct local intelligence has been gathered in relation to some of the proposed closures; or that the general rationale for those closures, as set out in the national consultation, stands up to scrutiny and makes sense in certain areas. We go into more detail in response to questions 3 and 4.

There is a general lack of evidence presented around how remaining courts will have capacity to absorb further work and without diluting the existing service in those courts. The proposals are partly based on the under use of court buildings, but very many of our members consistently report that on the ground the family courts are dealing with an increasing workload in difficult circumstances with private children and finance proceedings taking longer to go through the court. Allocation, listing and availability of hearing dates and judges are more of an issue than courts utilisation, which we believe has been underestimated in some cases and which would be used nearer capacity overall if more family judges were available and listing arrangements more effective.

The consultation does not directly address the impact on access to the family court for the increased volume of unrepresented litigants in private family cases without legal support.

Regarding the divorce centres opened earlier this year:

• We are unclear as to the reasons to now close Neath and Port Talbot Family Court.
• We would ask that the response to the consultation responses confirm that the Bury St Edmunds divorce centre will not be affected if the Bury St Edmunds Family Court closes.

Whilst we agree that some court buildings may not be completely fit for purpose and physical attendance at court hearings could be reduced in some areas of work, the necessary technology and
digital case management systems are simply not in place, certainly across the court estate currently used by the Single Family Court. There would be more confidence in the proposals overall if a largely modernised service (with appropriate facilities for families needing to use the courts) was in place or at least a published costed and timed plan, supported by resources, to introduce and improve those services across the family courts. As things stand, users of the family court are faced with the spectre of closures at a time when the court system is already struggling to cope as a result of funding cuts, fewer judges, and an increase in the number of litigants in person (who increase the overall length of proceedings).

In response to the recent Family Procedure Rules Committee consultation on proposed rule amendments about participation in proceedings and giving of evidence by children and vulnerable witnesses, we made clear our view that, in principle, measures for children and vulnerable witnesses in family proceedings should not be subject to availability – if they are necessary, they should be provided, especially in the context of a reduced court estate. Some people will be forced to travel further to courts, at extra cost, in order to access measures and facilities for vulnerable witnesses; and may have to do so under the proposed court rules if a measure is not available in a particular court but is available elsewhere. There will rightly be an expectation, with the intended reduced number of courts and acknowledgement in this court estate consultation of the requirement to improve the estate, of full facilities for vulnerable witnesses being made available in all remaining courts.

Question 2: Will the proposals for the provision of court and tribunal services have a direct impact on you? If yes, please provide further details.

Yes, in that our members and more importantly their clients (and other parties involved in their cases with or with or without the support of a family lawyer) are regular users of the family courts.
They often practice from firms also using the civil and/or criminal courts.

Question 3: Are there other particular impacts of the proposals that HM Courts & Tribunals Service should take into account when making a decision? Please provide details.

We are not confident that HMCTS has been able to put forward proposals based on full and adequate local knowledge e.g. about local access, realistic travel times and the suitability of local
facilities (please see our comments in response to question 4).

We are also extremely concerned that there is no real analysis of the impact on the remaining courts receiving work from closing courts after the proposed closures and across all the categories of court work. No real or detailed information is provided on investment in those courts as to what additional level and type of resources will be required or available – not only to provide fit for purpose facilities and timely hearings – but to effectively process all aspects of court work from the processing of an initial application to the provision of a final approved order.

The proposals are partly justified on the basis that, after these changes, over 95% of citizens will be able to reach their required court within an hour by car. The largest impact is likely to be on those clients and litigants in person using public transport, in terms of both cost and time.

The combination of limited public transport between some rural locations and even major centres, and block listing/waiting times at court, will continue to affect some of the most vulnerable using the family courts and won’t be offset in any way. Getting to court in time, or getting home from court in time to pick up children from school, or being able to get home at all by public transport, can be real issues without flexible listing and use of court and judicial time.

In particular, we would like much more careful consideration to be given to the likely impacts of the proposals on:

• victims of domestic abuse and their needs;
• family court users with emergency applications;
• children and young people who attend court to give evidence, or who are given the opportunity to attend the court for some other reason; and
• accessibility for parents involved in care proceedings. We would fear to see more hearings taking place without parents present under these proposals, which can have significant adverse implications for them, the child and the conduct of the proceedings.

Question 4: Our assessment of the likely impacts and supporting analysis is set out in the Impact Assessment accompanying this consultation. Do you have any comments on the evidence used or conclusions reached? Please provide any additional evidence that you believe could be helpful.

We have been contacted by members with local knowledge about particular court proposals and the supporting analysis. We attach a summary (Appendix 1) and ask that these comments be taken into account alongside Resolution regional and member responses and other responses to the regional consultations. Please note that we do not present this as an exhaustive list of those courts in respect of which our members may have views, concerns or evidence, as we have encouraged our members to respond directly about the impact of the proposals at a local level.

Our members are concerned that some usage level evidence appears to be based on circuit judge usage only and should include accurate usage by other levels of judge and usage of time at court
(but outside of hearings) to settle family disputes.

Question 5: Are there alternatives to travelling to a physical building that would be a benefit to some users? These could include using technology to engage remotely or the use of other, civic or public buildings for hearings as demand requires. Please explain your answer, with specific examples and evidence of the potential demand for the service where possible.

Whilst it is right to ask the question about alternatives to physical attendance, such proposals will require thorough piloting and properly funded and tested resources for the technology involved.
We also question the general practicality and desirability of remote services in family and children proceedings and where parties or witnesses have translation requirements.

Being in a court building can in itself:

• facilitate negotiation and the making of agreements;
• move cases along more quickly, especially in cases involving one or more litigant in person; and
• bring both security for witnesses and compulsion to tell the truth.

The purpose of an FDR hearing in financial proceedings on divorce is to encourage settlement – in our members’ experience, it is difficult to ‘knock heads together’, say, via skype (albeit that this
facility may have a role to play where a party is overseas).

If the technology was more available, we can see professional witnesses in family proceedings giving evidence from remote suites, but that is completely different to an individual who is unfamiliar with giving evidence and who may only appear before a court once in their lives; or the giving of evidence by and cross-examination of an alleged abuser respondent.

Family hearings usually involve sensitive issues, or issues that are sensitive to the individuals and children involved. We cannot see the benefit of the use of other civic or public buildings, especially where hearings will involve particularly vulnerable witnesses or and/or children requiring confidentiality and/or special measures support. Or that they will necessarily have any more space, private consulting rooms or better facilities available than current court buildings (albeit that those can currently be woefully lacking in existing court buildings).

Question 6: Please provide any additional comments that you have.

It is unacceptable that Wi-Fi and video links are still not available in all court buildings. This really needs to be addressed as a matter of priority.

The consultation makes reference to the possibility of a listing arrangements review. This would be welcome, with a focus on private as well as public law children cases and maintaining the timetable achievements in relation to the latter.

Going forward, there needs to be joined up thinking between improvement of the court estate, and listing arrangements, and current initiatives to bring to the fore in the family jurisdiction the needs of vulnerable witnesses and the voice of the child. Those areas are clearly a work in progress with thinking to be developed, but where children visit the court, meet judges or give evidence, arrangements need to be suitably timed and facilitated e.g. to avoid waiting times in unsuitable facilities.