On 23 October 2018 I commented on Twitter in response to a tweet from the acclaimed anonymous legal commentator and criminal barrister, The Secret Barrister. The Secret Barrister was responding to a tweet from @CourtNewsUK regarding a criminal trial that had been delayed because there were no jurors.
The Secret Barrister observed:
“Those unfamiliar with the criminal courts may be surprised to hear of such an absurd thing as a court running out of jurors. It happens regularly. Like courtrooms sitting empty while trials are adjourned because there are no judges. This all boils down to money.” #TheLawIsBroken”
Commenting on the tweet, I replied:
“This is happening repeatedly in family courts: cases that have been listed for months are being vacated at the last minute because there are no judges. A sad indictment on the justice system that is letting families down. #TheLawIsBroken”
For anyone involved in the family justice system, it is blindingly obvious that, in recent years, the system has come under immense strain. However, in my experience the public are less aware of these troubles, until of course the point at which they enter the system and they experience this strain first hand.
Cuts to the justice system
The introduction of LASPO which cut the availability of public funding in the majority of private family law cases has resulted in more people representing themselves without a lawyer. Inevitably this slows the process down: a hearing listed for a day is likely to take much longer without a lawyer, so those cuts (indeed, across the whole of the justice system) are surely a false economy when viewed holistically; I would add that they have inevitably facilitated the disenfranchisement of some of the most vulnerable people in society from being able to engage fairly in the court process.
Coupled with the family courts having to deal with an increasing number of litigants in person, there has also been a rise in the number of applications for care orders. For example, post Baby P, the number of children involved in public law applications jumped from 20,000 to 26,000 in 2009 and subsequently 29,500 in 2011. There are now nearly 35,000 children who are the subject of public law applications.
Earlier this year, Sir James Munby, the former President of the Family Division, characterised the situation as one at “breaking point and cannot cope with any more increases”. At the Association of District Judges Annual Conference in April this year, the Lord Chief Justice acknowledged that judicial “workload continues to grow and grow. Family law cases for example have seen double digit percentage increases year after year. The number of judges has not”. The number of judges retiring early has also increased, perhaps unsurprisingly given the stresses under which they operate, adding further to a recruitment crisis at a time when judicial morale is already at an all-time low. In addition to this, court closures exacerbate an already overstretched service, again, with some of the most vulnerable court users bearing the cost.
Where does that leave court users?
Where does that leave court users when there are fewer courts, fewer judges, an increase in the volume of cases and more litigants in person? Unfortunately, the all too familiar scenario is the dreaded email from the court office to the parties’ solicitors 2 or 3 days prior to a final hearing: “it is likely that your hearing on Monday will be vacated. There are no judges to hear the matter. The case will be relisted as soon as possible.” Anecdotally, and certainly from the responses generated from my original tweet, this is happening on an alarmingly frequent basis.
Sadly, this leaves the families at the centre of these cases bereft and rendered in a state of limbo waiting for a decision. The job offer in X country that has already been on hold for months is likely to be lost if their application to relocate with the children to X country cannot be considered for another 4 months. The child who has not seen a parent for 5 months must wait another 3 months before the court can determine whether the other parent’s allegations of domestic abuse are true or not to decide whether it is safe to see that parent.
What’s the solution?
There is of course arbitration, which can offer a speedy resolution. However, the reality is that only a privileged few will be able to afford arbitration. The litigants who are representing themselves are unlikely to be able to entertain this option and it appears that we are beginning to see elements of a two-tier justice system emerging. In any event, arbitration is not available for cases with an international element, so the parent in an international relocation case who has their final hearing pushed back a few months will simply have to wait for a new hearing date, unless they reach an agreement. This does not seem fair. As Nigel Shepherd, former chair of Resolution observed on twitter, “… those without the money to access private justice need a functioning public court system if they can’t reach agreement”.
Sarah Langford, a criminal and family law barrister, elegantly captures this point in chapter 9 of her book ‘In Your Defence’:
“Parents need the law. They need the court to make decisions for them when jealousy, rage and bitterness disable their own ability to do so. But more than this, their children need the law too…These children lie at the heart of every case and this system of justice tries to protect them. It lifts the weight of their parents’ battle from their small shoulders and places it upon the courts. It is a profound humbling and troubled burden for the law to bear, but bear it it does, whenever a parent refuses, or is unable, to bear it for themselves.”
Since 2010 there have been six Lord Chancellors (four since 2015). This makes it difficult for anyone who holds that office to make any proper changes or get to grips with the problems at hand. The system in its current form is letting families down. Fundamentally, as The Secret Barrister argues “it all boils down to money”. I couldn’t agree more.
Andrew Powell is a barrister at 4 Paper Buildings.