Family courts: A broken system

To try and better manage the rising numbers (27% increase) of private children law applications and cope with understaffing, the family courts in London have reintroduced prioritisation protocols used during the pandemic. Private children law proceedings are those involving private individuals: parents, grandparents, step-parents.

In conjunction with Cafcass (the body that provides social workers to assist and report to the family court), systems will be reintroduced to try and prioritise resources to where they are most needed. Cases that will be prioritised are likely to be those that are more complex, often presenting with safeguarding risks.

In West London Family Court for example, the court has been holding first and sometimes second hearings designated as ‘gatekeeping’ hearings, which are unattended by parties. The court is permitted to make directions orders about case management without hearing from the parties or their representatives, instead making decisions based on information provided by Cafcass, and in writing from the parties. This can result in parties feeling unable to put their case fully and discontent with directions and orders being made.

At hearings attended by parties and representatives a bundle of documents filed in the proceedings will be prepared but for unattended gatekeeping hearings these are not prepared. Significant delays in court administrative services also mean that decisions are being made in the absence of the most recent documents filed in the proceedings being before the court.

It is clearly incumbent upon practitioners to signpost their clients to as many alternative options from court as possible to resolve differences in co-parenting. These include: attendance at co-parenting workshops, agreeing a parenting plan, mediation, arbitration, and systemic family therapy. Judges are also doing their best to proactively case manage to reduce court waiting times. However, these steps alone will not resolve the problems.

The current system is broken.

Professionals involved in the system; solicitors, barristers, social workers, judges and other court staff are all closely attuned to the impact on children and families. This impact can last a lifetime and bring a plethora of problems in adulthood; including mental ill health, an inability to form and maintain healthy relationships, or hold down a job. This will probably cost the system more in the long-term, albeit from a different pot.

There is a need for a radical rethink about the causes of relationship breakdown, and the  impact of the aftermath upon children. As a preventative measure, children and young adults need more in-depth education about what a healthy relationship looks like, and how to foster healthy relationships, including romantic ones. There should be greater access to more advanced parenting and therapeutic resources. Parents should be encouraged to sign up to initiatives like the Parent’s Promise (a form of ‘pre-nuptial agreement’ for parents about what would happen should the relationship break down).

The physical structure of the court system, together with the terminology used encourages an adversarial approach. Whilst in some cases there may be a need for judicial assessment of allegations made, there should be a track for the resolution of less complex cases that is less adversarial and more holistic.

In the meantime, parties who can afford legal representation are likely to fare better in the system. Specialist family lawyers know how to complete court paperwork and present their client’s case in a way that maximises the chance of convincing the court that their client’s proposals are in the child’s best interests.

The cuts to legal aid mean that many parties are unrepresented. This in itself has contributed to increased waiting times, with litigants in person taking longer to present their case in court, making unnecessary and inappropriate applications and being given airtime by judges who want to ensure that there is a level playing field. Greater access to specialist legal advice would undoubtedly result in some reduction to long delays.

The crisis in the family court needs urgent and proactive intervention to limit the impact on families who rely upon the court to make crucial decisions to safeguard and protect children subject to proceedings.

Written by Rachel Frost-Smith and Jennifer Headon from Birketts LLP

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