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 via an online questionnaire. Mena Ruparel provides some insight into what the responses revealed.
The questionnaire asked whether solicitors were experiencing delays in cases being listed, this is the process whereby the court gives the parties a date for the next hearing. Often, delays at this stage can then lead to potential delays for the actual date of the next hearing.
Respondents to the questionnaire reported that overall, public law cases are listed without delay, to ensure that the 26-week time limit to finish these cases is observed. These cases are clearly treated as a priority for court time and resources.
However, private law cases often experience listing delays of more than a month for any type of hearing to be listed. PD12B FPR 2010, the child arrangements programme, indicates at paragraph 14.1 that the first hearing may be heard within four weeks but should ordinarily take place in week five following the issue of the application and at the latest in week six. This is further highlighted at paragraph 22 which sets out the court timetable. The anticipated timetable for the first hearing is generally not being observed in any court. The responses we received indicate that the process of listing isn’t being dealt with within the time period set out for the courts to hear the first appointment.
In some areas, there seems to be an issue with dispute resolution appointments (DRA) not being listed at all where counsel have drafted orders, which include a provision for the next hearing to be listed on the first open date after receipt of the CAFCASS report.
On the financial side it would appear that first appointments are being listed within the 12-16 week window set out in r9.12 FPR 2010.
However, the problems with listing subsequent hearings is pronounced across the country. Many solicitors are experiencing significant delays in getting FDRs and final hearings listed. Respondents to our questionnaire reported delays of 6 weeks to send out listing information which can often impact the timetable going forward. For example, if the court has directed that updated financial documents should be filed 6 weeks before the date of the next hearing, it is entirely unhelpful if there is then a delay of two months for the court to send out the notice regarding the date of the next hearing. Many practitioners have reported delays of up to six months between first appointment and FDR, while one solicitor revealed they had a nine month wait. A small number of solicitors indicated that they don’t experience significant wait times for hearings to be listed; however, they still have times of weeks rather than days.
In one anonymised example, a solicitor stated that they applied for a 10-day final hearing at the beginning of 2017 but the listing didn’t come through until June. After a delay of 6 months, they have been notified that the hearing itself isn’t due to start until May 2018, a period of more than one year from the request.
Double booking and full lists seem to be an issue which runs parallel to that of listing delays with many cases double or triple booked with others. This means that live cases can be vacated if there is a double booking which is also live. In first appointment lists there can be 14 first appointments listed for the morning, with emergency applications and 30-minute hearings also timetabled at the same time. The district judge is often expected to sit through a full day of hearings in the morning alone.
One solicitor saw a significant delay in cases being listed when the family court at Tunbridge Wells closed in 2016. This has put significant pressure on the courts at Hasting and Maidstone to the extent that they are apparently struggling to cope with the volume of work in addition to the existing cases issued there.
Putting to one side public law cases which should be resolved within 26 weeks, many private law cases seem to be resolved within one year of issue. One person said that there seems to be a ’more haste less speed’ approach to dealing with these cases which isn’t always positive. Others reported delays of one to two years for resolving cases, particularly where fact finding needs to be dealt with in domestic abuse cases.
In one Family Law Act case at Dartford, the matter took six months to resolve with one party being excluded from the property during that time.
In financial cases the average time to settle at FDR seemed to be between nine to 12 months, where a final hearing was needed this could be pushed to 18 months or even two years if the first final hearing is vacated.
An additional problem that was highlighted is that following contested cases, it seems that parties can be waiting for judgment for more than six weeks after the final hearing.
The issue of deemed fees only impacts those paying privately as these fees aren’t recoverable in the Legal Aid arena.
Many chambers have been flexible and reasonable where cases have been vacated by the court, sadly not all. It would seem that more established senior counsel are frequently observed to be more rigid about charging deemed fees even where no papers have been delivered and no work has been done. Of course, the matter of deemed fees is always set out clearly by chambers and counsel are entitled to charge the same. Junior counsel seem to be more flexible about charging and claiming deemed fees. Some respondents feel that counsel’s fees were fair and negotiable but others felt that fees seemed to be climbing and that it was hard to justify the levels of fees being sought.
One person reported that their client was £3,500 worse off after a case was vacated and counsel’s fee was deemed. Others responded that after the court vacated a hearing at the last minute, the parties and counsel agreed to hold a roundtable meeting which resulted in settlement.
It is important for solicitors to react in a constructive way if a hearing can’t go ahead and explore other options such as arbitration, a private FDR or a roundtable meeting. There will be additional costs incurred if the parties decide to proceed with a private FDR or arbitration but this is likely to be proportionate to the potential lost fees payable to counsel and solicitors for work already undertaken.
Different chambers have different approaches to fees being deemed if the case is vacated
|Hearing vacated X weeks before it is due to take place (unless stated otherwise)|
|Chambers||% of fees due|
|C||100 (3 days)|
To avoid being caught in a trap regarding deemed fees, it may be possible to negotiate with chambers in advance that no deemed fees will be paid. Many chambers wish to maintain a good relationship with firms and might be amenable to this arrangement. Some firms do not work with chambers who levy deemed fees, this is a restrictive approach but might be worth contemplating.
Another approach is to book counsel at the last minute to avoid fees being deemed, this will be appropriate in those cases where the cost of counsel is a significant expenditure to the client. This may cause inconvenience as the client won’t know who is instructed until just before the hearing. The solicitor’s first choice of counsel may not be available but if chambers are unwilling to be flexible on the issue, this might be the only fair solution for the client. This approach will save the client thousands of pounds in deemed fees if the hearing doesn’t go ahead. In my view, the client should be given the opportunity to make an informed choice about the matter.
It is sad to see so much dissatisfaction with the court service, as this reflects poorly on us as a society. Whilst HMCTS is going through a period of change, the current system is devastating those people who can least afford it. Ordinary people who are going through family breakdown have not only been let down by the widespread removal of legal aid but are now embroiled in a system that doesn’t function in the way that it should. They and their children have been let down twice; something needs to change for the better.
Mena Ruparel is solicitor, family law arbitrator & managing director of Law CPD Solutions Ltd. She is also a member of the Family Section Advisory Group.