Is a privately funded family justice system inevitable?

Is a privately funded family justice system inevitable?

The answer to that question is that it may well be. Anyone in England and Wales with experience of the family justice system knows only too well that it is at crisis point and has been so for some while. Clients are only too aware of the shortcomings of the current system and how it can adversely affect not only their finances but also their lives and those of their children.

As family lawyers we have been trying to bring this to the attention of the public and politicians for what seems like an eternity. But little has changed, and little will change. We can look back to the halcyon days when legal aid ensured that almost anyone who needed it had access to legal advice and representation. Those days will never come back.

Figures released in late June this year show that in just 21% of private law children cases taking place between January and March 2021 were both parties legally represented. Whatever we may want and whatever we may hope, this is not going to get any better and in all probability will get worse.

The knock-on effect is that all court users are affected. The increasing number of couples who cannot afford legal advice leads exponentially to more applications to the court adding to judges' workloads and the recent Judicial Attitudes Survey revealed that judges are becoming more disillusioned and more inclined to retire early.

The Sunday Times has drawn attention to the increasing number of private financial dispute resolution (FDR) appointments, where couples pay for a totally independent ‘judge’ to help them find a resolution to their financial issues after separation and divorce. Those ‘judges’ are highly experienced solicitors, members of the Bar and retired family judges. They do, of course, charge a fee but such private FDR appointments are much more likely to result in agreement than an FDR appointment in the court system, primarily because those private FDR judges are able to devote the time and attention to cases which, sadly, judges in the court system seldom have these days.

What are the advantages of a private FDR?

Private FDR appointments not only have a high level of success, but clients feel that they have been listened to, and if agreement is reached not only do they save time but also money, since the overall costs are far less than if they continued in the court system. It is money well spent; a good investment in achieving a resolution and planning for the future.

In the first four months of this year, the number of applications for financial remedies rose by 27%. At that rate there will be over 50,000 new applications by the end of the year adding to the existing severe backlog. This may prove to be the ‘straw which breaks the camel's back’. The family justice system will not cope and as family lawyers we need to be creative, inventive, innovative and pro-active to help our clients. We have the ability to do all of that.

We have seen the introduction of family mediation, collaboration and arbitration. None have been as successful as they should have been. Why is that? There have been just 301 family arbitrations in the eight year period to January 2020. That is enormously disappointing. There are few cases which are not suitable for arbitration. It is not a process just for the rich, nor solely for those cases where the assets are more modest.

A survey undertaken by OnePoll for Irwin Mitchell might have the answer: out of the 1,000 people polled, 39% did not even know what ADR (alternative dispute resolution) was, 35% were not offered ADR  and 25% regretted not using mediation and arbitration.

The lessons are clear. The court system is failing. It is slow and getting ever slower and overloaded. That results in unnecessary expense for clients. The answers are in front us and together they are ADR (‘appropriate’ dispute resolution), ie mediation, collaboration, arbitration and private FDR appointments.

How many times have we received letters, or even written, to say that a financial remedies application is being issued ‘but not as an aggressive step’, ‘only to set a timetable’, or ‘to avoid drift’? Mediation can set a timetable and avoid drift, so can collaboration and so can arbitration.

Conclusion 

There will still be cases which have to be subject to court proceedings, for example, where one party will not make full disclosure, or where injunctions are required. They are the minority and we all have to break away from issuing a financial application. It cannot be the default, it must be the exception. The judges must be left to deal with the most serious and urgent of cases. In that way the system might just not fall apart. This will mean that our clients will have to pay for mediators and arbitrators. The fees involved are modest and in the end, they will thank us for finding a better and quicker way to settle financial disputes and also, overall, a cheaper one.

One last thought. How long will it be until a family solicitor is sued by one of the 39% who were not even told about ADR and as a result had to pay more in costs by going to court or suffered financially by the delays in the court system?

Graham Coy is a partner at Wilsons Solicitors LLP

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