COVID 19 – Access to justice in the family courts. What is the alternative to the Court system?

The President of the Family Division and Head of Family Justice, Sir Andrew McFarlane, acknowledged in his “Covid-19: National Guidance for the Family Court (users)”, that these are exceptional and unprecedented times and that the situation both nationally and in each locality is changing daily, if not hourly.

Although the president sought to reassure court users that his aim was to “keep business going safely”. There has, understandably, been considerable disruption.

In those courts which have kept their doors open, hearings have moved to telephone hearings or video conferencing. Across the family team, we have had multiple directions hearings, in the local courts and the Chancery division and even a Final Hearing. There have reportedly been some successful multi-party, multi-witness cases which have taken place via video conferencing. There is however a lack of consistency between the courts. 43% percent of the criminal and family court across England and Wales have been closed. In addition, a further 124 courts and tribunal buildings will remain closed for the public but open to HMCTS staff, and the judiciary. These “staffed” courts will support video and telephone hearings and progress cases without hearings. The intention is to ensure continued access to justice.

In our local area, courts such as Uxbridge and Slough have been temporarily closed. Watford County Court is closed to the public but is “staffed”. West London and Milton Keynes Family Court remains open for essential face-to-face hearings. We have heard positive reports as to the continued operation of cases from Reading and Oxford family courts but of disruptions to the Central Family Court.

Despite the disruption to some cases, you should not automatically assume that your hearing has been cancelled due to the current pandemic.

What will the above mean for an already overworked court system? Many cases have been adjourned off but they will still need to be heard at some stage. None of us know how long the lockdown will be in force and so the wait for court hearings could be unprecedented. Family lawyers are all too aware of the pre COVID19 delays in fixing hearings and processing court documents, especially in private law children cases and divorce and finance cases. This is likely to get worse before it gets better.

A solution to the above and in attempt to provide some certainty and a quicker resolution for our clients, we will be encouraging clients to opt for Alternative Dispute Resolution. Essentially, an alternative to court proceedings. There are various options where ADR is concerned. What these options have in common is that you can set the timetable rather than waiting 6-12 months to get a court hearing. They are also usually more cost effective.

Our family lawyers have experience in guiding clients through Arbitration. We know solicitor and barrister arbitrators, who we can engage in the role of “judge” and can offer a number of fee options. Arbitration is binding and will get a very quick determination. This can all take place via video conferencing.

Another area which is growing in popularity and demand, is private FDR’s which are also capable of being successfully conductc via video conferencing. The middle stage of Financial Remedy proceedings on divorce. Again, you can choose your Judge, your date and you have fixed costs. The FDR stage in any financial proceedings is designed to encourage the parties to reach agreement. Often at a Court led FDR, you are confined to court lists and opening times and could be in front of a Judge who has been unable to read the papers due to their packed list of cases. With private FDR’s if you need to negotiate beyond these parameters then you can and your Judge’s focus will be on your case.

Even with the current uncertainty and issues with the Court system, there remain options available to ensure you can progress with your negotiations and resolve matters.

Contact IBB’s family law experts today

IBB Solicitors’ family law practice can provide  expert advice on all aspects of divorce and separation, and other family law issues. To contact the family law team please email familylaw@ibblaw.co.uk or call 03456 381381.