Family justice in England and Wales in the age of Covid-19 (and after)

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Frances Burton

University of Buckingham, UK

frb@frburton.com

Introduction

This was the year in which at one time the most important question in English and Welsh Family Justice waswhether, following the UK’s departure from the EU, implementation of the Brexit cut off of EU law in our courts (formerly referred to as the end of the ‘transition’ period) would be in December 2020 or December 2021^[1].

Now the most crucial question is probably when, if ever, the coronavirus is going to end, at least in the jurisdiction of England and Wales. Since that will be the date when, irrespective of any remaining Brexit issues, the Family Court is going to have to face a tsunami of cases. Cases which, during the pandemic-induced court closures, have been adjourned as non-urgent and thus unsuitable for remote hearings. These cases also seem not to run as seamlessly on the technology provided to the District Judges in the Family Court as those used in the High Court and above.

In the meantime, in the Family Court, the cases that have been deemed urgent have been dealt with in hastily set up online hearings. Following some of these, parties who are discontent with their disposal may already be queuing again for a face-to-face hearing once these become more routinely available.

In other words, the Family Court, which was already overloaded in 2018 and 2019, will eventually return from the coronavirus outbreak in England and Wales to an even steeper overload than before the pandemic. This is because not only of the twin impact of all the adjournments and the online hearings, but also of the concurrent accumulation of new cases which continue to flood into the Court, which can only themselves be dealt with through urgent online hearings, if applicable, and adjournment of all the rest, if not. This naturally presents a picture similar to a whirling merry-go-round, but of one not just spinning faster and faster but right out of control. Though the President of the Family Division of the High Court, who is responsible for the Family Court delivery, painted an even more graphic picture of the effect as one of trying to run up a downwards escalator.

In summary, although the impact of the lockdown on courts in England and Wales was itself immediately addressed by the Family Justice judiciary as soon as the Prime Minister’s first social distancing measures were announced in March 2020, issues with technology were not. When Mostyn J, one of the Court’s innovative heroes from its inauguration in 2014, was apparently the first to conduct a remote hearing with the aid of software that already available on judicial laptops, plans to address this additional overload had yet to be formulated.  It is some consolation that Lord Justice Baker, the creative judge of AI v MT^[2] and a supporter of the Non-Court Dispute Resolution (N-CDR) favoured by the previous President, Sir James Munby, is already part of the organised recovery.

While in the intervening three months there has been significant development of online hearing facilities – originally centred around Skype for Business and Microsoft Teams, although occasionally using Zoom (subject to certain conditions) – these have now been joined by remote hearing tools from other software platforms. Nevertheless, only now is the senior management team working out what to do in the long term. This is because the overload, and issues with addressing the volume of litigants in person – the ‘LIPs’ with little or no legal aid to call on since the ‘LASPO’ Act in 2012^[3] and thus self-representing for obvious economic reasons – have been building up for a while.

Since early May^[4], the President and Lord Justice Baker, who had already assembled an ad hoc Family Justice Recovery Group, have been working on a plan to address the ‘gradual and uncertain emergence from isolation’. This has been foreseen by the President as probably more challenging than the present remote working, and which the President mentioned in his most recent ‘View from the President’s (Remote) Chambers’ (‘View’)^[5] as now the ‘most important item’ in his current in-tray.

The problem

As set out by the President in his ‘View’ of 11 May, while the Family Court has been ‘moving towards becoming digital, that goal has not been achieved and we remain largely a paper based system’. The word ‘largely’ indicating the worst case scenario of the muddled work environment evidenced by the recent research fieldwork carried out by City, University of London’s Centre for Child and Family Law Reform Centre (CCFLR) project, ‘Fast Tracking Low Value Financial Claims in the Family Court’ ^[6]. This report showed data collection from five typical outer London and regional Courts in 2018 was restricted to paper files only (from which many documents had been removed and not returned following scanning into the Court’s management system ‘FamilyMan’, which the researcher was not permitted to access).

Combined with the Court’s caseload data available from the final pre-pandemic ‘View’^[7], which recorded the ‘apparently inexorable rise’ of private law applications, the ‘unremitting pressure of work’, with less than 50 per cent of its child law cases being completed in the 26-week period now required pursuant to s 14 of the Children and Families Act (CAFA) 2014. This indicated a system that was already ‘being required to work at well over its capacity’, with the number of outstanding public law cases rising by approximately 1,000 a year despite the ‘dedicated and remorseless work of all involved’, and at the same time seeing new private applications outstripping their backlog by the receipt of over 6,000 more in 2018–19. As he then indicated, ‘we are running flat out up a down escalator which, despite our efforts, is outpacing us’.

Put this way, how much worse will the situation be once the present emergency is over and those adjourned cases are actively relisted? The December 2019 review presented two possible solutions to this situation:

1. encouragement of parties (through a public education programme) to seek other dispute resolutions outside the court, echoing encouragement by the previous President of what he then termed ‘N-CDR’; and

2.  if the parties consider they must go to court, the use of the pre-application mediation which is already statutorily required by the Children and Families Act 2014 s10.

Both these points were raised at the 2019 Family Justice Council Debate at the Oval in early December 2019. Moreover, unfortunately the CCFLR researcher recorded that no form of N-CDR was either uniformly, or even frequently, encouraged by the judiciary in case files she perused in either the busy North London Court selected for her visit or any of the regional courts in the North, the Midlands, the South West or Wales.

The Family Court after Covid-19

The President does not shrink from addressing this post-Covid-19 situation. The present, extensive adjustments which staff and judiciary have had to make in order to achieve the necessary remote working required in the lockdown are addressed in this month’s ‘View’. He notes that this is ‘out of the norm, stressful and no doubt very tiring’, praising staff’s ‘can do’ attitude and ‘positive mind set’, including in having to ‘learn new skills and processes very quickly’ to manage ‘differing, and sometimes sub-optimal, technology’ and ‘often over the phone with emotionally charged lay parties, day after day’. This is, as he has recorded, ‘much more difficult and tiring than normal working’.  

In this he singles out the contribution of the Court staff and the District Bench for their handling of the demands of the Family Court’s work, which is inevitably much more fragmented, widely varying, busy and demanding in its personal interface. When compared with than the inevitably smoother, mostly legal argument-related work of the higher courts in which hearings lend themselves more easily to remote hearings, irrespective of any variable quality of the technology.  

It is therefore providential that he has already had a most useful report from the Nuffield Family Justice Observatory^[8] on the recent experience of remote working, which he clearly regards as a major primary resource for study of the optimal recovery. This, as he says in his May ‘View’, must be right or ‘we could live with our mistakes for a long time to come’.

However, there are other likely primary resources which might usefully be deployed to deliver a future Family Court process which might benefit from the experience of the lockdown’s emergency responses, spawning the core online provision which is currently the norm, unless greater urgency and importance requires an inter-personal hearing.

It seems that the two crucial ways forward are those already identified above as:

1. education of the public to the acceptance and use of N-CDR as a genuine alternative to court proceedings. This is not a new idea, as it was advanced as a crucial development in the previous government’s Minister of Justice and Lord Chancellor’s Foreword to his review of the LASPO Act 2012^[9]; and

2. making existing recourse to pre-proceedings mediation or other DR methodology work, which would include promoting N-CDR generally in the Family Court, not just mediation, since the CCFLR Report^[10] noted that even mediation was almost entirely absent from the courts visited by its researcher.

There is one possible solution that could potentially meet both of these requirements: the Institute of Family Arbitrators’ Family Arbitration schemes. These can address both financial claims and most private child law issues under English law. These are particularly useful where mediation has failed, and do so more quickly than obtaining a Family Court hearing, often much less expensively. Also issuing an ‘Award’ under the Arbitration Act 1996, which in the absence of error of law or procedural irregularity, the Court will endorse by making a Consent Order in the same terms.  

At the same time, arbitration can provide certain other attractive and more satisfying results for the parties than opting for either the court route or mediation (which does not provide a determination). For example, the parties may choose their own Arbitrator from the Institute’s qualified and experienced professionals, who include both IFLA trained and experienced senior practitioners and retired judges of the superior courts whose profiles are shown on the IFLA website^[11], and also optionally have the Arbitrator’s Award enshrined in a Consent Order.

Moreover, the process was approved, following its inauguration in 2012 by the then-President of the Family Division in the case of S v S^[12]. Numbers of private arbitration hearings have recently risen steadily, especially following the expansion of the children jurisdiction, including provision for most permanent and temporary leave to remove, as set out in the April 2020 fourth edition of the Institute’s Children Scheme Rules. 

Considering the advantages to both parties and the Family Court, especially in the context of the present court overload, the fact that the Institute has considerable capacity to take on additional work, it is possible that Family Arbitration might now appeal to parties who would otherwise go to the Court for a determination, if available without delay.

The potential role for IFLA Family Arbitration in the post-pandemic Family Court

IFLA has made a proposal to the Recovery Group, in effect to promote other N-CDR methodologies alongside mediation, which is already enshrined in the FPR 2010 r3 as well as in CAFA 2014 s10, and which attracts some legal aid despite the LASPO Act 2012 Family Justice cuts. Although Family Arbitration – along with Early Neutral Evaluation (ENE) and Collaborative Law – does not qualify for even such legal aid as is still available.

Nevertheless, an IFLA Arbitration can in fact be extremely cost effective compared to Family Court proceedings. It is a misconception that arbitration is necessarily expensive, and only for high value cases. In fact, it is particularly cost effective for low value financial claims and for child dispute cases. An arbitration can cut out many court costs, even for higher value disputes, since there are no expensive Family Court rules to comply with as it is up to the arbitrator which corners can be cut financially in this respect as long as adequate disclosure is obtained.

Moreover, while arbitrators – unlike judges – must be paid, they have flexible fees. The overall bill can be reduced by the fact that there is no application fee for an arbitration. Legal fees may also be much less because much of the front loaded preparation of court ordered bundles of documents can be omitted, provided the arbitrator receives the evidence they require.                                                                                                                                                                                                                                                                                                                                                                                                               

But the opportunity to avoid delay in obtaining a court hearing providing a decision and early disposal is probably its unique selling point. As recorded in the Second Report of the Family Law Working Group:^[13]

‘The stark reality is that with ever increasing numbers of court applications in private law, which compete for court time with the high numbers of public law applications…which together exceed the current capacity of the family court and Cafcass/Cymru, delay is inevitable and regrettable.’

After the pandemic emergency period, perhaps the time for more formalised N-CDR has come.

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