‘Crumbling Family Court System Is In Crisis’

Published on: 18 Feb, 2016
Updated on: 21 Feb, 2016

By Karin Walker, who chairs the National Dispute Resolution Committee (Resolution)

Guildford is anecdotally known as the “divorce capital” in England and Wales. Its family court, based in Mary Road, has been the location for judicial resolution of issues facing consequential high numbers of separating couples.

Sadly a new and unexpected pressure now faces those whose lives are already in disarray.

Due to government cuts, the court system is crumbling under the additional pressure of fewer judges and a dramatically reduced administration service.

A common misapprehension held by the public is that court is a place where “justice” and even “retribution” can be found. The reality is that the service is desperately suffering to cope with an ever increasing volume of work.

The divorce process, previously issued in Guildford, is now commenced in the centralised family court at Bury St Edmunds. Only if a physical hearing is required is the case allocated to a “local” court.

In an attempt to drive the public out of the court system, each person making an application for financial remedy or child arrangements must now attend a mediation information and assessment meeting (MIAM) with a mediator accredited by the Family Mediation Council (FMC).

Apart from the FMC website there is very little information available about this process. While some separating couples are encouraged into mediation, which can be fast, efficient and cost effective, others are still directed towards the ailing court system, attending a MIAM simply to obtain a form (FM1) as a passport to court based litigation.

The first difficulty then encountered is delay – turnaround time for paperwork can inexplicably be weeks and sometimes months.

Chasing by phone is unproductive.

A hearing date is allocated rarely to the convenience of the couple (or their lawyers) but an attempt to reschedule involves an additional court fee and more delay.

More cases will be allocated on a particular day than the judge has time to deal with in the hope that some may settle during the long waiting period between issue and hearing.

If most go ahead however, the most diligent judge has no hope of properly reading the papers, or devoting adequate time to any case in their list.

If sufficient time is unavailable for a case to be dealt with, it will be rescheduled with no regard to the legal costs incurred for a hearing that did not actually take place.

Without doubt, lawyers make most money out of cases which go to court. The system is however unsustainable in its current form.

Further cuts will cause the process to be even less satisfactory. As most members of the public only encounter the family judicial system once in their lives, they may have no real appreciation of how inefficient the system really is.

Family lawyers who are members of the organisation Resolution (www.resolution.org) are encouraged to look at options with each new client which do not involve court (solicitor led negotiation, mediation and collaborative practice) aimed at maintaining communication (essential where there are children involved) and minimising cost and delay.

In reality, most people either want help to make their own decisions or someone to make a decision for them.

For those who simply require a decision, the process of arbitration is fast becoming the best alternative.

Originally seen as a private arm of the legal profession intended for the very rich, it soon became apparent that arbitration is quick and cost effective for the average family law case.

Although a fee is payable to the arbitrator the start to finish time of under six months (compared with the average 18 months within the court system) means that overall legal fees are significantly reduced.

The selected arbitrator will deal with the case throughout. There is no judicial continuity in the court process. Hearings are listed to the convenience of the couple and their representatives and can be rearranged on request.

Until this year arbitration was only available in financial proceedings, but in February 2016 the first arbitrators are training to deal with child arrangements.

This service, which will hopefully be available by the summer of this year, means that if you want a decision made in relation to Christmas contact arrangements, you no longer have to issue your application by the preceding March to be sure of a court date!

Like it or not, the court arena is changing dramatically. Surrey practitioners have been pioneers in this changing landscape, adapting to provide a better service and encouraging those who might otherwise seek a “DIY” divorce to get proper advice which needn’t be cost prohibitive, and ensuring that matters are handled properly thereby avoiding such calamities as a previous spouse being entitled to claim against a lottery win purely because financial claims were not properly handled at the time of the divorce.

If those separating couples who do not need to be in court are sign-posted to a different route, the underfunded court system stands a chance of providing a proper function for the very small minority of cases that need to be decided there.

Click here for the website of Surrey based lawyers KGW Family Law.

What are your views? Perhaps you have been affected by the situation of the family court system. If so, please leave a reply in the box below.

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