An interesting article in the Law Society Gazette by Edward Cooke and Nikki Edwards surveys recent trends in the family court. It’s not encouraging.
Private hearings and arbitrations (where the parties pay for a barrister to act as judge rather than go through the court system) have been gaining lots of popularity in recent years and there’s no question they are a great option when affordable. However, the article discusses how they may be helping to create a two tiered system in which wealthy parties head out of the court system to pay private judges for a superior service, with the court system not really seeming to benefit as a result. It’s a discussion that might apply to many private versus public services.
One thing I would say is the combined advantages of private hearings can help bring about earlier settlements in cases. The savings a party will gain as a result of settling earlier can make going private economical even in cases where there isn’t so much money floating around. So it’s important not to discount private hearings in all lower money cases. But of course going private is simply not possible in some cases, especially where parties have to represent themselves because they can’t afford legal representation at all. Such cases have been on the rise ever since legal aid was stripped away from family cases in 2013.
The article states that despite the significant growth of private hearings there is little evidence that the trend is relieving the burden on the overflowing courts. Delays and the timescales of resolving cases in the court system is as bad as ever and getting worse. You might say that surely the courts would just be even worse without private hearings taking some of the volume, and that there are longstanding problems (let’s be honest, the justice system in general is hugely underfunded), but looking just at the private hearings point, it may be wrong to assume they help alleviate pressure on the court system. Barristers who might have been thinking of becoming a judge have more incentive to stay where they are and take advantage of the more lucrative (and presumably less stressful) private practice. “With private work being more lucrative than a full-time judicial appointment, it is perhaps unsurprising that we are witnessing such a deficit in the numbers of full-time judges and the corresponding delays in the court process.” Long-term will the caliber of court judges fall as well as the number?
The article goes on to list some ideas for how to try and address the problems including ideas which would no doubt be divisive. But it’s getting easier to envisage a future court system where wealthy families simply opt out and pay top barristers to hear their case quickly, wherever and whenever they want, and based on far more preparation; while others are left in an underfunded, overcrowded, understaffed court system, with no hope of legal aid, representing themselves and getting nowhere fast.
The 2021 Family Court survey reveals that delays in the system are as bad as ever. This survey reported that the average timescale from case start date to final order for private law children cases increased to 44 weeks in the final quarter of 2021. This figure was 30 weeks at the start of the pandemic and has doubled from an average of 22 weeks in 2017.