We cannot ignore court backlogs

‘The Family Division is full of heroes.’ I remember one of my best friends in law, solicitor Sally Parsloe, saying that some 30 years ago, in reference to the district judges working on cases to protect vulnerable children. Now, seven months into the pandemic, it could not be more true. 

Recent praise of the discipline’s unwavering commitment to justice from the president of the Family Division, Sir Andrew McFarlane, is undoubtedly well-deserved. His claim that the family courts have swiftly resolved the Covid-induced backlog is admirable and reflects the ‘can do’ attitudes that he memorably encouraged the family law community to embrace in his ‘way ahead’ document dated 9 June 2020.

However, it is more important than ever to stress the crippling pressure that the courts are currently under.

Of course, many positive aspects of family law have indeed alleviated Covid-19’s pressures. Staff have attended court since they have been allowed to, while some judges have made and approved court orders over weekends. The online filing system has efficiently accelerated cases that would otherwise have faced months of delays in the paper filing system. Some court applications can even be dealt with efficiently by email, telephone or on a video platform, saving our clients’ precious time by not having the wait in a court building, but having a fixed time for hearings they can attend on a laptop.

However, despite the strength of character demonstrated across family law since March 2020, the courts are currently battling with a backlog of cases. Early in September 2020, Citizens Advice revealed that the number of online searches for divorce were up 25% compared with the same date in 2019. Add to this the swathes of separated couples flocking back to the courts to renegotiate child and spousal maintenance following salary cuts and jobs losses due to the pandemic, and it is clear that the picture is not as rosy as may be portrayed.

We cannot ignore the reality of serious court backlogs, what that means for our clients and, most importantly, what that means for children caught up in these cases. After all, justice delayed is justice denied.

His Honour Judge Furness QC, highlighted this at a recent webinar hosted by LawWorks Wales, offering a thorough overview of the situation on the ground in Wales. ‘In Wales the backlog of private law cases has gone up by 1,520 since 1 January 2020, and the backlog of public law cases has increased by 264. That’s 1,784 extra judge days to be fitted into our schedule, the equivalent of eight or nine judges working all year full time.’

The struggle is very vivid and challenging. We have to throw resources at it, hire more judges and create more court spaces, as advocated by McFarlane last week. After all, prevention is better than cure.

The legal profession is lithe, nimble and adaptable. We created Resolution, a body of family law professionals keeping cases out of court where possible, putting the interests of children first and endeavouring to find amicable solutions to proceedings. We are also creating a sophisticated method of early neutral evaluation. Whether it is the fixing of private financial dispute resolution appointments, or the early neutral evaluation of children cases, family law is creating a swift and efficient way of shifting cases out of the court system and ensuring early resolutions.

Now, the challenge for the government and our profession is to ensure that early neutral evaluation can be made available to people of all means, rather than just those who can afford it. Coram Chambers in London is at the forefront of this.

For the abundant skills of Lord Wilson to be available as a private judge in early neutral evaluation cases is remarkable. He is not the only retired judge who sits as a private judge in these cases, but he is certainly the only one from the Supreme Court – and judges can be influential in shaping policy, too.

A particularly seismic example is the judgment of Wildblood J in the case of Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44, where he threatened sanctions against those who facilitate the bringing of private disputes into courts overladen with weighty family cases. He memorably criticised the case of a litigant asking him to decide which junction of the M4 motorway his children should be deposited at for contact.

Exactly the same strictures will apply to idle financial disputes that take up the time of busy judges, and we are seeing more High Court judges sanctioning parties who perpetuate litigation unnecessarily by refusing well-drafted open offers.

Judges, court staff and the family law profession have shown unparalleled determination in 2020, keeping the wheels turning when they could have ground to a halt. However, our case backlog is a serious cause for concern. How do we move onwards and upwards? Policy, practice and perspiration – a powerful cocktail.

Simon Bruce is senior counsel specialising in family and divorce law at Farrer & Co, London