Delays after the decision: When Family Court orders get stuck in the system

The distressing impact of delays in the Family Courts doesn’t end after the case is heard, Sean Hilton and Phoebe Starbuck say. The partner and solicitor at Stevens & Bolton examine the ongoing financial and emotional impact of court delays, even after orders have been made.

Delays within the family courts are no longer a surprise to practitioners. Judicial shortages, overstretched resources and mounting caseloads are a daily problem and there are countless ruminations on how these issues could be fixed.

As part of that conversation far less attention, however, has been paid to what happens after proceedings conclude: when orders are agreed, approved or handed down, yet remain unsealed or unprocessed within the system.

Even in otherwise straightforward cases, delays in the sealing and processing of family court orders are giving rise to serious practical, financial and emotional consequences for families. Lawyers now regularly experience delays of six weeks plus, frequently preceded by chasing the court to establish whether the order has been sealed.

This is a cost to clients that can be difficult to justify, particularly where they may be juggling unpaid invoices for the previous months intensive work trying to get a settlement ‘over the line’. It can easily fall off the radar of both the client and the lawyer.

Consequences

The distinction between a decision being made and an order being implemented is critical for lawyers. For clients, however, that distinction is often blurred. It is understandable that once a hearing has concluded or an agreement has been approved by the court, clients assume that the practical consequences will follow promptly. Unfortunately, increasingly, that assumption proves misplaced.

Financial

Delayed sealing of orders can significantly obstruct the implementation of financial settlements. For example: property transfers may be stalled, sales delayed, sale proceeds may remain frozen and mortgage offers may expire. Administrative delay can therefore have immediate and tangible consequences for families seeking to move on with their lives.

A further difficulty arises in respect of lump sums. Where physical receipt of a sealed order is delayed by months due to poor administration, the recipient may experience prolonged financial hardship and anxiety while awaiting payment and (perhaps as worrying) a payer can end up in default of an order requiring a payment within 21 days ‘of the date of the order’.

Pension sharing orders are particularly vulnerable to delay. Lawyers will recognise the recurring problem of pension sharing annexes not being sealed alongside the main order. Even where the order is sealed and sent to the provider, the absence of a sealed annex prevents implementation. These delays often lead to clients forgetting a pension transfer should be made and that can be fatal at the time of retirement.

Children

Where child arrangement orders remain unsealed, there are uncertainties for the parties on enforceability. This creates confusion and can increase instability for the child or children involved. In cases involving safeguarding concerns or high conflict parental relationships, such uncertainty can be especially damaging to the welfare of the child and to the mental health of the parents. There can be a myriad of practical issues as a result, for example, missed deadlines for school applications and the withholding of payment for education and/or child related expenses.

Emotional impact

There is often a mismatch between client expectation and reality. Clients may reasonably believe that once an order has been drafted this signifies that their case has concluded. Being informed weeks or months later that the order has not been sealed – or, in some cases, cannot be located at all – can be profoundly distressing. Where extensive delays prevent implementation and the stability anticipated by clients fails to materialise, it may leave them feeling powerless and or confused as to why an agreed or ordered outcome cannot be acted or relied upon. It also damages the relationship between the client and us as their lawyer, as there is realistically nothing we can do other than continue to chase.

What needs to change?

Greater accountability and transparency are essential. Meaningful case-tracking systems would enable lawyers to identify where an order sits within the process and who is responsible for progressing it. This could be an element of increased functionality on the HMCTS portal for instance.

While increased transparency may not in itself accelerate processing, it would allow lawyers to manage client expectations more effectively. Clearer information about likely timescales would enable clients to plan accordingly and more regular updates from HMCTS on processing times would assist.

There is cautious optimism following early pilot schemes under the Child Focused Courts (CFC) model, which demonstrated significantly shorter case durations. As the CFC model is rolled out nationally, its potential to reduce the number of hearings, and consequently judicial time, may offer some relief to the system. With greater judicial capacity and continued modernisation of court processes, there is hope that post-order delays may be shortened and eventually alleviated.

Delays in the family courts are no longer confined to administrative errors and judicial overload for active cases. Increasingly, they arise after judicial decisions have been made or where matters are agreed by consent, at the point when families expect resolution but encounter additional delays and uncertainty instead. If the family justice system is to function effectively for those who rely upon it, urgent attention must be paid not only to how active cases are managed, but to ensuring that outcomes are promptly recorded, sealed and capable of implementation.