As has recently been reported in the Sunday Times, for an increasing number of couples who decide to divorce private hearings have become the forum of choice. They are pursuing this alternative option in order to avoid the delays and uncertainty that have become routine in the family courts. Although the primary reason is the backlog of cases caused by the Covid-19 pandemic, the family courts were already overloaded pre-Covid – a situation that has been exacerbated by a series of protracted lockdowns, causing demand for private hearings to soar over the past year.

Private hearings fall outside the conventional family court system: the Family Division of the High Court, district judges in County Courts and Family Proceedings Courts. Instead, they use experienced family lawyers and retired judges who are paid to preside over hearings fixed to settled disputes (FDR hearings) during the “normal” procedure and to arbitrate matrimonial disputes over money and children.

Such hearings are generally brought in connection with divorce or the parents’ separation, but they can also include: parental responsibility; financial applications; special guardianship orders, which give a special guardian legal responsibility without removing that responsibility from the birth parents; and orders under s.8 of the Children Act 1989, to settle where a child lives, parental contact and responsibility and other specific disputes. Orders can also be made over “prohibited steps” – for example, preventing a parent from moving a child to another country.

Using a private FDR hearing has been common for many years and is now a standard part of high net worth divorces. It has been feasible to choose a private arbitration in family cases since 2012, although for the take-up has been slow. But it is now gathering speed. Data published by the Institute of Family Law Arbitrators reveals that of all family law arbitrations that have been heard over the past nine years, almost 30 per cent have taken place since January last year: 127 out of a total 428.

Problems in the family court system originate from the fallout of the tragic case of Peter Connelly in 2007. Social service were heavily criticised for not taking early action in that case and it prompted a sea change in their processes – there became a flood of cases that came to the courts. The family courts has to deal with a significant increase in such cases whilst also catering for divorces, financial matters and other children issues.

These problems were exacerbated by the austerity measures first put in place by the coalition government more than a decade ago.  In 2010-11, the combined spending for criminal and civil legal aid was £2.57bn – a figure which precipitated a cost-saving review that was intended to reduce annual expenditure by £350m. But by 2017-18, the annual legal aid budget had fallen to £1.63bn – £940m lower than it had been in 2010-11.

The key legislative driver to cut legal aid spending arrived in 2012 with the passing of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). Wide-ranging in nature, its specific focus on legal aid was to narrow the scope and financial eligibility criteria. The Act removed financial support for most cases involving housing, welfare, medical negligence, employment, debt and immigration. Critically, financial support was also removed for most private family law cases, except for situations involving domestic abuse allegations, where a child who is the subject of the proceedings is at the risk of harm from another party.

The number of people accessing legal aid fell by 82 per cent in an eight-year period post 2010-11, while in family matters it shrank by a remarkable 88 per cent. By the end of 2018, the cuts to legal aid led to the family courts becoming swamped with unrepresented litigants, despite the expectation that many people would be discouraged from continuing with proceedings.

In February 2019, the government published its long-awaited post-implementation review (PIR) review of LASPO, which was intended to be a far-reaching examination of the effect on access to justice of the substantial cuts to legal aid, together with an action plan of the way ahead. The PIR acknowledged that there was a significant gap between LASPO’s original intention and its practical impact in family law: the hope that, by cutting off their access to lawyers, conflicted parents would be dissuaded from litigating and diverted instead towards mediation.

In short, it did not work as planned. Rather than mediating, divorcing couples chose to represent themselves instead, leading to a dramatic increase in litigants in person (LiPs) appearing before the courts. By 2018, representation has dwindled to such a degree that only 20 per cent of family court cases involved parties who both had legal representation; in 35 per cent of these cases neither party had a lawyer.

On condition of anonymity, one senior judge told the Guardian: “LiPs are a nightmare – 99.9 per cent of them do not understand what is going on in court or outside court; they don’t know a good point from a bad one; they don’t understand the law; they don’t understand what they have to prove and they don’t know how to ask a question. It is my firmly held view that the courts are full of people who would not be there if they had been able to approach a solicitor.”

COVID effect

As elsewhere, the pandemic had an immediate and dramatic impact on the Court system throughout the UK. In March 2020, the Lord Chief Justice, Lord Burnett of Maldon, stated that it was “of vital importance that the administration of justice does not grind to a halt” and that there was “an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible.”

Video conferencing and fully remote hearings swiftly swung into action. Within three months, the Business and Property Courts (B&PCs) managed to undertake nearly 85% of their usual business – a quite remarkable achievement. The same did not apply, however, in the Family Court.

In June 2020, Sir Andrew McFarlane, President of the Family Division, published ‘The Road Ahead’ for the Family Court in England and Wales. He identified a growing backlog of cases, including a considerable volume of pre-Covid cases, which were severely restricted by the ongoing need for most hearings to be conducted remotely. “The Family Court was not coping with the pre-COVID workload,” wrote McFarlane, adding that “the ability of the system to process cases is now compromised by the need to conduct most hearings remotely.”

By January this year, there were more than 42,000 outstanding family cases because of more referrals and delays caused by the pandemic. McFarlane provided an update to The Road Ahead, which was also published in January. This further noted that “Whilst there is a most welcome ‘light at the end of the tunnel’, in the form of mass vaccination, this ‘light’ is only likely to lead to a return to anything like normal working in the Family Court once the bulk of the population have been vaccinated, which may not be achieved for some time.”

Critically, the update emphasised: “If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.”

Private hearings

Against the backdrop of an overburdened court system, a decade of austerity and the impact of Covid-19, it is perhaps no surprise that there is a significant impetus for change. Even without these additional problems, divorce cases are expensive and they often take years to achieve resolution. In this context, the courts are encouraging people to pursue the option of having a private hearing instead.

According to government figures, it takes more than nine months (40 weeks), on average, for a family law case that does not involve the care system to go through the courts. As a measure of the Covid effect, this 40-week average is now 10 weeks higher than it was at the start of 2020. Private hearings can be quicker and cheaper. Whereas it will usually take two years in the courts, concluding a contested financial case can take less than a year. Some argue that arbitration can be cheaper than the normal court process but this is hotly disputed.

Of course, such private hearings are not always suitable for everyone. There is also a fundamental issue as to whether the state should offload part of their function – to help citizens solve intricate family issues on to the private sector when the causes that lead to this (problems in social services, austerity, Covid restrictions) are caused by the state. A fundamental feature of or society is justice for all. Does this mean access to private justice for all?

To alleviate the wider problems there has been much talk of a fundamental overhaul of the system to deal with its assorted problems. While such reform would be welcomed by matrimonial practitioners and by those contemplating or already involved in divorce proceedings, at present any fundamental overhaul is no more than talk. There is a concern also that reforms that reduce the availability of court time to litigants will lead to miscarriages of justices and potentially appeals and further litigation. Should such reforms help to improve the system, seek to offload the problems on the private sector or potentially make things worse? Laws made in haste can lead to significant problems in the future. Let’s hope that any such new laws do not fall into that trap.

Read Alex’s article in FTAdviser.