Ever since the government wielded the axe on the granting of legal aid in private law family proceedings in order to cut spending, the family courts in England and Wales have come under increasing and unrelenting pressure. Today, they are in a state of near collapse and drastic measures are needed to get it back on its feet.
At the time of the drastic cuts in 2013, the short-term benefit of cutting the legal aid budget did not fool those working in the family justice system, whether for the courts, solicitors, barristers or welfare practitioners in Social Services or CAFCASS.
All of these professionals foretold that the cuts in legal aid for family law matters would lead to not only significant injustice in cases, but also a huge increase in litigants in person and, as a result, far more pressure exerted on the family courts.
The government of the day failed to take into account these concerns, focusing purely on the short-term benefit of cutting the legal aid budget.
Sadly, it did not cost out the detrimental effects this would have on the family justice system, those who come to the courts to resolve family law disputes or the near-collapse of the courts.
It used to take some four to five months to obtain a divorce through the family courts, but this has now increased to nearly twelve months, with no improvement in sight.
The government, as part of the measures introduced in 2013, laid great faith in encouraging and, indeed, compelling parties to attend mediation and mediation information assessment meetings, anticipating that these would be used in preference to the courts. The reality is that the uptake in mediation has fallen drastically, with more and more people applying to the family courts to resolve their disputes, whether in relation to a divorce or separation and related financial matters or because they are unable to agree on the arrangements for their children.
The delays in children cases run a coach and horses through the well-accepted premise that such delays are detrimental to the best interests of the children, hence, in public law children proceedings the imposition of a target of twenty-six weeks in which cases are to be dealt with, but which, due to the strain the court is under, is rarely achievable.
Sir Andrew McFarlane, President of the Family Division, recently said that the current volume of cases the courts are having to deal with is “unprecedented and, on current resources, unsustainable”.
He has been so concerned about the situation that he has set up judge-led public and private law working groups to look at how the court system can be improved, particularly in respect of proceedings concerning children.
Some interim results have suggested that although more and more cases are coming before the courts, there has been a decline in the number of social workers, children’s guardians, lawyers and judges due to the “incessant and overwhelming demands of the family justice system”.
It was revealed that in March 2019, CAFCASS received 4,166 new private law cases, an increase of some 18% on March 2018.
The private law working group recommends that the courts should be more robust about parents attending MIAMs and mediation before involving the court unless there is a valid exemption or safeguarding issues which would preclude their use.
In my day-to-day practice, the decline in the efficiency of the courts and the delays are becoming increasingly difficult to manage and, clearly, have a detrimental impact on cases progressing in a timely manner.
The consultations are continuing, and it is to be hoped that at the end of the consultation period (30 September 2019), worthwhile final proposals will be made and implemented to halt the decline and save the family court from collapsing.