The Lord Chief Justice and a failing family law system

Family Law|November 7th 2016

The Lord Chief Justice has just laid his 2016 report before Parliament. He states in his foreword that it is now some ten years since responsibility for justice and the judiciary was vested by law, jointly in the Lord Chancellor and the Lord Chief Justice.

Meanwhile, this weekend we’ve seen the performance of the first female Lord Chancellor, with her non-response to the hysterical media attacks on the Judiciary which followed the decision of the Divisional Court on Brexit. Her woolly press release highlighted the gaps in her knowledge, understanding and abilities. I have been amazed to read a number of calls for her resignation from senior members of the profession, people that would never normally dream of criticising a senior colleague – let alone the head of the whole shebang!

What the Lord Chief Justice is doing with the court reforms, he is probably doing, I suspect, without her active help but with the able assistance of the rest of the supplicant  Judiciary, including Lord Justice Ryder, a former family lawyer in Manchester who has now been appointed the President of Tribunals. However, he reminds us that the aim apparently shared by the Lord Chancellor and the Lord Chief Justice is to produce a system that is “just, proportionate and accessible.”

It is already failing. The newspapers this weekend carried the story of the lengthy delays at one of the just 11 divorce centres now in operation across the country, following the closure of 43 other courts. Think about that. Eleven centres are supposed to now be competently doing the work of 43. Bury St Edmonds, for one, appears to have been predictably swamped, and delays are growing to unacceptable levels. How could anyone, realistically, ever expect otherwise?

We family lawyers used to be able to confidently advise a client that they would have their undefended divorce within four months. Now you can tell them, if they end up caught up in the morass, to double that time estimate or even treble it. Junior Judges, by the way, also no longer handle the divorce work they used to, or in the numbers they once did. Administrative assistants have been trained to do it instead. Can they really be doing a decent job at the same speed and with the same technical ability? Think of the Child Support Agency. Think, for example, of the administrative assistants bogged down in formulae, procedure and strict regulations trying to make sense of a field that once was operated by lawyers and judges …now think again about those working in “divorce centres”. Get my drift? My colleague John Bolch would do away with this process altogether and bring in no fault divorce. Increasingly, and sadly, I find myself seeing the sense in this approach, even if I still believe no fault divorce would weaken the entire heart of marriage and give rise to even more fraud than there already is – something which these assistants are presumably trained to weed out.

In the section of his new report which most interests me – the one looking at private family law -the Lord Chief Justice says this:

“The Family Court Statistics for the second quarter of 2016 show a 16% increase in new private law cases, compared with the same quarter in 2015, to 12,203.27 This, in combination with the increase in public law cases, is a major concern for the judiciary. Again, the reasons for the increase are not well understood and the majority of the private law cases that come before the Family Court now feature litigants-in-person, increasingly on both sides. As with public family law cases, measures to address the growing caseload need to be considered.”

Oh Dear. A “major concern for the Judiciary”? But what about the litigants themselves?

“The reasons for the increase are not well understood.”

I think, with the greatest respect, that we all actually understand the reasons only too well. First, there will inevitably have been a rise in divorce following the end of the recession. It happened in the 90s and it is probably happening again now, despite the rise in the number of couples choosing to live together. Sadly. but probably helpfully for the government, there is no law at all for all those cohabitants – so no increase in those pesky people with their pesky problems making life even harder for the Judiciary.

And then there are the foot soldiers, the family law legal aid solicitors. Remember them? Those much maligned, legally qualified, poorly paid but experienced professionals who oiled the wheels of the system but who have since been prevented from acting for those people arguably most in need? Legal aid has all but gone. So what can these litigants do? They can go to court because they are being steered away from seeing a lawyer by a short-sighted government and they have no clue how to settle cases between themselves. With no faith in mediation, they are doing what people have done for centuries: using their democratic right to go to court – and thereby causing a “major concern” for the Judiciary. It doesn’t seem to matter to the Lord Chief Justice, with the greatest respect again, how many thousands of lives have been left in chaos as a result. Let’s not forget that.

So the people and the system are both in turmoil and a bad situation is all set to get worse as more courts across the country are closed and those “divorce centres” prove themselves to be increasingly hopeless. This could all have been predicted by anyone who remembers what happened to the CSA, and which, for the record, is still happening of course.

But never fear. We mustn’t forget those aims: ‘just proportionate and accessible’. Help is at hand in the form of digitalisation – an online court system I can only hope delivers the desired improvements. But how likely is that really? It is surely all based on an assumption that everyone is IT literate, has access to a computer, and can litigate online as much as is required, allowing an “administrative assistant” help them sort out their problems. Assuming, of course, they are actually around to do so, the people have the time and they are prepared to wait in an ever growing line, possibly for months and months at a time, whilst their real lives get worse and worse. Meanwhile, the courts around them may well be closing. The first 43 are only the start. The end game is a total of some 86 courts across the entire country. We already have a snapshot of how things are likely to get worse via the lengthening delays in divorce centres. Interestingly, another senior Judge this weekend made it clear that justice should still be seen to be transparent. I’m not sure how that’s set to work. Maybe it will need those handy travelling courts they are also talking about in suitable buildings? I kid you not.

And here we get to the real hub of the problem. A wealthier person or someone who can arrange to pay the fees, won’t try and grapple with a situation set to get worse and will instead instruct a qualified solicitor and seek advice technical proficiency and access to a court room in a system which is slowly melting down.

Many more, meanwhile, will believe, swallow the government’s guff, and get caught up in the quicksand and slip through the net, with State benefits ultimately footing the bill.

Our new Lord Chancellor came in for some stick this weekend, but it is nothing compared to the court mess over which she now presides. And it is nothing compared to the mess presided over by the Lord Chief Justice and the rest of the senior Judiciary, whom we lawyers have valiantly defended this weekend over social media. We are told of the low morale amongst the Judiciary. It is understandable but there is so much that they could do. It is respectfully, time to open eyes, and stop pronouncing the Emperor’s new clothes that I recall from my childhood never actually existed at all.

Read the Lord Chief Justice’s report here.

Photo of the Royal Courts of Justice by Jo.sau via Flickr under a Creative Commons licence

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Comments(2)

  1. Adrian Berkeley says:

    I was recently confused by one of these so called “administrative assistants” who, when responding to my client’s request for an earlier Hearing time from a 12:00 noon Directions ORDER, the assistant replied by letter that it would be at 10:00 am “as specified in the Order”.

    Yet no one could give me a definitive answer whether I can rely upon the letter overriding the Order? Certainly, in my practising days, an Order could not have been overridden by a letter from an assistant.

    And this is meant to be a Court system designed and suitable for the Litigant in Person!

  2. Charles Jackson-Smythe says:

    Because we do not have No-Fault divorces then people HAVE to defend themselves and the average person cannot afford legal representation, even more so when most quote an hourly rate of £180 – £240 per hour and then ‘forget’ to make you aware that their fees are subject to VAT. A questionable Practice. Most people do not have £1000s to spend on Legal Fees and if they had they need that to now support two ‘households’. Marriage is too easy to get into but most people do do understand the day-to-day implications if the relationship breaks down, financially and emotionally, particularly when children are involved. More time and education should be considered before the Marriage Contract is signed because that after all is what a Marriage Certificate is. Generally a man signs away all his rights because in a secret family Court he has no Human Rights or rights under the UN Rights Charter. Sex discrimination is constantly practised in Family Courts aided and abetted by Cafcass, Social Workers and an attitude that men are there as sperm donors and as an ATM machine. The current criteria for a divorce/separation is rife for abuse.

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