As a family law solicitor, I have many frustrations; solicitors on the other side who don’t return my calls, the inability to secure a preferred barrister for a hearing because they are already booked and even the odd client who doesn’t take my advice and hinders their case. The most frustrating aspect of my job however are the delays my clients experience, at the hands of the courts.
Those unaffected by family law may be unaware but the problem is severe. Our Court system is dealing with an unprecedented backlog of cases. With the demise of public funding in most family law cases there are more inexperienced users of the court system (known as Litigants in Person) who unintentionally add an additional strain on the system. HM Courts & Tribunals Service has reported that the family court backlog ‘may not return to pre-Covid levels until 2023’. With yesterday’s announcement of a further national lockdown in England I wonder whether that prediction may perhaps be optimistic.
I’m not one to let my frustrations get the better of me, instead in 2021 I want to focus on what I can do about this.
Embracing technology in family law
A major improvement in family law was the roll out of the HMCTS online system for divorce for the public, meaning a straight-forward divorce can be applied for online. More significantly we now have an online case management system for lawyers. Using this system, a lawyer can make applications and track applications without the need to send paperwork into the courts, with the obvious danger that it is delayed, mislaid or misfiled. In our experience cases processed through the secure online system are processed much more quickly than the old paper-based approach. Although the system does still have some teething problems it is a major step in the right direction and to be applauded.
During the first lockdown many law firms closed their doors whilst they figured out how to allow lawyers to work remotely and the Courts closed and only reopened on a much-reduced footing. Consequently, we’ve seen an acceleration in the use of remote video and telephone hearings in family law cases. For many of our clients this has been much preferable to a face-to-face hearing. It means no travelling to an unfamiliar location, the potential intimidation of the Court building itself and a much-reduced time investment, with much less hanging around on the day of the hearing.
My pledge in 2021 is to embrace the technology already available and prepare my clients fully for whatever type of hearing they may have, including providing the full reassurance that a telephone or video hearing will provide them with the same access to justice in the family courts as a face-to-face hearing would have. They will still have a judge consider their case, and that judge is more likely to have a little more time and be better prepared than they might ordinarily have been.
Negotiate harder
Recent comments from the judiciary are steering family lawyers towards less reliance on the Courts and looking for alternative ways of getting outcomes for our clients. Lawyers are being urged to ensure their clients have tried everything before using Courts as a real last resort. HHJ Wildblood QC sitting in the Bristol Family Court made this pretty clear:
“Therefore, the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from the court… If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you.”
The message is clear – my role as your lawyer is to help you reach an agreement with the other party, by negotiating hard and helping you to reach a compromise both parties can live with. There are rarely ‘winners’ when it comes to family law cases. When you think about it, in financial cases both parties will have needs which needs to be satisfied and in relation to children the only winner should ever be the child.
I’d encourage anyone entering into divorce negotiations to start the process with the right attitude, one of openness, honesty and practicality, with due regard to what the law will allow and I pledge to support my clients fully through this process.
If you can’t negotiate, arbitrate
Arbitration, in family law, has been around for a while now, but it still isn’t common practice. In an arbitration you achieve an outcome by appointing an arbitrator, a private judge if you like. The two parties jointly choose the arbitrator, and the timetable is agreed by the parties, rather than dictated by the Courts. It’s a very practical way to get a decision much more quickly than using the family Court system.
I accept that there are some perceived barriers, but I think as lawyers it is our job to address these barriers head on. One potential barrier is the cost. Taking your case to the family court is ‘free’, other than the Court fee. In arbitration the cost of the arbitrator is met by the two parties. At first glance this might seem like a significant additional cost but pause for a moment. What is the real cost of your case being delayed, waiting for a court date? It’s not uncommon for clients to wait 3, 6 or even 9 months to get a hearing date. In that time, they are likely to continue to engage the services of their solicitor and try to negotiate or deal with ‘issues’ with the other party. All of this has a cost, without even mentioning the emotional and practical cost of not being able to move on with your life.
Another barrier is that both parties need to agree to the arbitration. We can explain to our clients that it’s in their best interests but can also make a case to the other side too. I realise this is something I need to work on, but I believe in arbitration and I believe in getting swift results for my clients, so it’s another area of focus for me in 2021.
Moving forward in family law
2020 was a very busy year for us here at Woolley & Co. Unlike many law firms we have offered uninterrupted service throughout the COVID pandemic due to the novel way we operate, with lawyers working from home connected by sophisticated cloud-based software and telephony. Unfortunately, we operate within a system that struggles to keep up, but we will continue to offer the very best service to our clients and help address their frustrations as well as our own.
Davina Warrington
Family law solicitor, Burton on Trent
