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Family court logjam crisis gives a golden opportunity to think differently

Date:14 JAN 2021
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Chief Executive, NFM

Early this month The President of the Family Division issued a stark message to family law professionals. ‘The Road Ahead’ set expectations about the ability of family courts to begin to address its backlog, making clear a return to any form of ‘normal’ practice in courts is many, many months away. 

Not rocket science, but a message that needs to be got out there. And yet not just to the specialist audience Sir Andrew McFarlane targeted - to the general public too. Particularly families in conflict. 

It’s these families who will be fervently hoping for a favourable outcome from a court hearing, having often spent thousands on legal fees.  

They’re currently waiting months for the opportunity to, well, cross their fingers for that outcome. That wait is going to stretch further and further into the distance, well after vaccinations have taken effect.

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How did we get into this state? Yes, Covid has played a significant part, but the family court logjam was well-established long before the nightmare of 2020 began. 

Professionals know very well about the buzz in court room corridors as lawyers work tirelessly to broker agreements outside the court room, minutes before hearings, in order to then present them to the judge and minimise time spent in the hearing. Professionals know. Laypeople don’t. And LASPO was a game changer.  

The growth created by LASPO in litigants-in-person meant a boom in court attendees with no idea about these agreements, or of this way of working. So their cases naturally take longer to resolve, and the waiting list mounts. The crisis was plain for some time. And then came the pandemic. 

This crisis gives family law professionals a golden opportunity to think about things differently. To seriously deploy the existing resources and services that are already available to help ease the growing pressure on the courts.  

So can we hit the ‘pause’ button, please?  

The starting point should be for courts to focus on attendees who have not attended a Mediation Information and Assessment Meeting (MIAM), and refer them straight to mediation. To ask the basic question: is this case legitimately here?  

And while Sir Andrew rightly sets expectations for professionals, and looks to help address their workload issues, there is another significant audience which needs to know what’s going on.  

Families in conflict must be given realistic information now, about the long delays they are highly likely to encounter if they want a court hearing. They will stretch well in to 2021. Families need to be helped to understand that in the meantime they can do productive things to begin to resolve their disputes. Things like mediation which will at the same time help minimise disruption in their lives, and prevent further deterioration of already-fragile family relationships. 

The road out of this crisis has two lanes: family law professionals using existing services and powers; and families being equipped with information so they can proactively help themselves at this desperate time.  

Ministers have a part to play in leading the way. But we all do. Every professional who works with families in conflict can help ensure the depth of the family court crisis, and the way out of it, is well understood.