Family courts: fit for the modern era?

On 6 March 2024 the chancellor of the exchequer, Jeremy Hunt, delivered the spring budget. Of interest to all family practitioners was the particular focus on the family court and his allocation of £170m to fund non-court dispute resolution (NCDR). Although the spotlight on the family court is welcome, will this be enough to address the root of the problem faced by the overburdened family court?

Unfortunately, the answer is probably not. A multifaceted approach to this problem, built up over many years, will be needed. The £170m has been allocated with the intention of funding ‘non-court resolution’ and digitising the court process with a greater use of AI. However, there are other elephants in the room such as funding for those who cannot afford legal fees. According to the Office for National Statistics the average annual gross income is £34,900. An Aviva report in 2018 confirmed that the average cost to divorce in the UK was £14,561. However, legal fees often eclipse both sums combined; particularly if court proceedings are issued, resulting in the payment of legal fees being prohibitive for most of the population. The impact of this often results in litigants in person opting for invoking the courts’ help – adding to the already overburdened system in volume and leading to an increase in judicial time to deal with these matters.

Improved access to legal funding should facilitate greater access to justice and, if the full range of NCDR is explained at an early stage by all practitioners, as referred to below due to compulsory training, this could have a significant impact on current litigants in person heading ‘straight to court’. Of the £170m, £55m is to be ring-fenced for ‘providing online guidance and earlier legal advice’. This is a welcome step aimed at early advice and information in private cases involving children. The full budget also reveals that £12m will be used to increase the scope of legal aid but this is unlikely to be enough.

Other issues adding to the problem is the lack of judicial availability, the reduced ability to speak to an individual in the court office and the general delay in paperwork turnaround. The number of court staff appears to have reduced over the years. This, coupled with the inability to check on a matter or chase something up, is a source of immense frustration – no doubt to those working in the court system, too.

From a court user perspective, the turnaround time for approving consent orders, for example, now appears to be as slow as it was when they were sent by post. Users can be left waiting for over six months for an order to be approved, with no routes to redress to escalate the matter, leaving clients in complete limbo. Documents and emails often end up in a black hole, leading to significant delay and increased costs as practitioners try, often in vain, to get an update or accelerate a response. The lack of funding and resources are noticeable and the budget does not address any of these challenges.

A further impediment is a lack of information, knowledge and reticence by some practitioners to provide fee-paying clients with a full understanding at an early stage of all the options available to them, enabling them to make a truly informed decision about the way they wish to resolve matters. The changes to the Family Procedure Rules that come into effect on 29 April should make a positive impact on some practitioners’ reticence to promote or explain NCDR options. Solicitors who engage the court will have to explain and justify why NCDR hasn’t been considered or taken up throughout a matter, and may risk costs orders if a judge feels they have not properly engaged.

As well as providing early information and advice, it has already been proposed that all family lawyers should be trained in all the NCDR methods so that they can truly inform clients. This is a further option the government could consider, facilitating real change from the ground up.

There are many interested parties working tirelessly to research and input into a much-improved family justice system. One such group is the Family Solutions Group, set up by Mr Justice Cobb in 2020 – a multi-disciplinary group tasked with making recommendations to improve the experiences and outcomes for families away from the family court, placing children at the centre of the system. It is hoped that the government will continue to closely engage with this and other groups to ultimately, in the words of Jeremy Hunt, make the justice system 'fit for the modern era'.

Grace Parker-White is a partner at Stevens & Bolton