Family law solicitors share their experiences of the family courts.
Earlier this year, the Law Society’s Family Law Section asked its members to recount experiences that they have had in the family courts. In doing so, we unravelled the extent of dealings with counsel’s chambers, fees charged by counsel when matters were taken out of the list by the court at the last minute, and chambers’ deemed dates for due fees.
It is emphasised that there was no bias toward negative results. In fact, some positive stories emerged too but these were far outweighed by less complimentary ones. The responses to the survey proved to be rather enlightening.
The data, although not quite as extensive as the Paradise Papers, is still being analysed but it was felt that it might be useful to give a preliminary outline of the concerns which have been highlighted. This was not intended to be a scientifically structured survey. It is hoped however, that what has been uncovered may be of interest to a wider audience of family professionals and will add to the discussions about court modernisation, not to mention the much greater scope for clients and practitioners alike to adopt family arbitration.
A number of respondents had experienced the court adjourning, of its own volition, a hearing with only 24 hours’ notice. Some people reported this happening on numerous occasions.
Reasons included an apparent lack of judicial time, owing to double, or even multiple listings of matters.
The impact of this on clients includes:
Late adjournments do occur where a children matter is given priority over a financial one. However, respondents also reported the court adjourning Children Act matters, including public law cases:
Getting through on the telephone to the Bury St Edmunds Divorce Centre (BSE) has involved some being on hold for a very long time. After its launch, BSE brought in an automatic email reply system, updated daily, in an effort to reduce the number of calls it might get.
A respondent reported that a court they use regularly has staff who insist that they will simply put their letter on the file itself, which may require taking a matter out of the list owing to agreement, and leaving it to the judge to deal with at the hearing itself. It would be a more accurate daily list if such matters were to be taken out before the day. Strictly, of course, the parties and their legal representatives are required to attend unless told otherwise by the court.
A suggestion made by the court local to my firm is that the date and time of a hearing and the case number should be included in the subject of emails sent to the court, instead of being placed in the body of the message or within any attachments. This is something my firm has been doing as a matter of course, making it easier for court staff to prioritise emails.
When asked how long they had to wait to hear from the court, responses included:
Different courts have different approaches. Presented with a Form A for issue, including an application for maintenance pending suit, some will not list it separately. Some appear not to acknowledge or respond to written complaints, or fail to deal with them effectively if they do.
The survey asked about positive experiences too. These included:
It is hoped that the information revealed by the survey promotes a broader discussion which will lead to making improvements to the court system. Nevertheless, it is submitted that greater use of family arbitration would avoid so many of the difficulties respondents encountered. Its advantages include speed, flexibility and confidentiality. The parties can pick their arbitrator, how the arbitration proceeds and when. There is no court-imposed timetable: the parties avoid any delays within the court process. There is even potential flexibility about the procedure followed, and the scope of the arbitration itself. As a result, family law arbitration can have significant costs advantages.
Back to the court framework and divorce centres. As at 27 November 2017, BSE said that its current work position was as follows:
Our current work position is
Things can change very quickly, as demonstrated by the impact on BSE after a positive article on its efficiency was published last year by a solicitor. At risk of prompting a further similar deluge for BSE, my firm has just received a decree absolute from this divorce centre turned around in a day.
So how can a busy family law solicitor run a client’s case efficiently and speedily faced with the responses received to this survey? The only sure way of avoiding these difficulties in the court system is to avoid court altogether. The highlighted problems are a great advertisement for non-court dispute resolution, notably family arbitration for financial matters and private children disputes.
Tony Roe is a family law arbitrator and principal of Tony Roe Divorce & Family Law Solicitors, Theale, Reading.