Why going to court may be the worst option, but it may be the only option

Many people still assume that where there is a legal dispute about their children, they need to go to court to resolve it. However, there are a number of far better ways to resolve these types of disputes, but regrettably all too often court proceedings are the only remedy which is used.

Fathers often contact me because they are not being allowed to spend time with their children after separating from the children’s mother. (It is usually, but not always, fathers; even now, most children tend to live with their mother after their parents separate. For the purposes of this blog, I will assume that the applicant is a father and respondent is a mother, although sometimes it might be the other way around). They are often about to issue an application at the Family Court for a Child Arrangements Order, believing that this will provide a swift resolution to the dispute. I usually have to give them some very bad news.

There was a time, maybe 15 to 20 years ago when I was a young solicitor, when these types of disputes could be sorted out very quickly. In cases where contact arrangements had recently broken down and absolutely no contact was being allowed by the parent with care of the children without justification, we might make an urgent application to the court for what was then known as an interim Contact Order. The court would issue the application very quickly, often on the day that the application was delivered by hand to the court office. The judge would give his or her permission for short service, i.e. instead of the usual 14 days’ notice of an application, only two days would be required. I would instruct a process server to hand deliver the application to the mother who would often be able to obtain a legal aid certificate at very short notice so that she could be represented at the hearing.

At the hearing, the judge would make an interim Contact Order, ensuring that the father got to spend some time with his children until the court could make a final decision about how much contact he would have. This might be a restricted amount of contact, sometimes being limited to seeing his children at a child contact centre or for far less time than he would ideally like, but it would be better than nothing.

Those days are long gone. Nowadays, when presented with this kind of case, I have to advise fathers that before they can issue an application in most cases, they will have to attend a Mediation Information and Assessment Meeting with a mediator when they talk to a mediator and find out whether or not their case is suitable for mediation. (It often is – more about that later). If they then issue an application at the court, they are embarking on a process which will take many months, possibly well over a year, to run its course. Even if they have a low income, they will probably be unable to obtain legal aid; this is now only available in this type of case for victims of domestic abuse, a restriction which discriminates against men who are more likely to be accused of domestic abuse than to be victims of it). Even if they are eligible for legal aid because they are victims of domestic abuse, they are unlikely to be to find a solicitor who undertakes legal aid work. My understanding is that there are now no solicitors in Colchester who undertake this type of legal aid.

I tell the father that the court will not treat the mother’s refusal to allow contact as being an emergency which needs to be dealt with by the court. If an application is issued, the First Hearing Dispute Resolution Appointment (FHDRA), which should be listed for a hearing within about a month, is in fact unlikely to take place for two or three months at best, because the court is overwhelmed with cases of this type. The court no longer has the power to make interim orders in relation to children in most cases, unless and until the Child and Family Court Advisory and Support Service (Cafcass) has undertaken safeguarding checks with social services and the police. These safeguarding letters are rarely available until a day or two before the FHDRA.

It is much harder nowadays to reach an agreement about arrangements for children at the FHDRA than it was in the good old days. In Colchester (practice varied from court to court), all applications for what were then known as Contact Orders and Residence Orders would initially be listed for a Conciliation and Directions Appointment, where before the parties saw the judge, they would first spend an hour with a conciliator (a bit like a mediator, but more hands-on), with their solicitors present. The solicitors’ role would be to listen to the discussions being facilitated by the conciliator and then if the client needed legal advice, then the solicitors would take their clients outside the conciliation room, give them advice in private, and then return to the room to continue their discussions. Contact agreements were common at this stage; the judge would congratulate the parties on their sensible deal and would adjourn the case for 6 months so that the parties could come back to court if the agreement broke down. I remember being told that it was successful in about 80% of contact disputes, although to be fair, it tended to be less successful in disputes about residence (i.e. about with which parent the children live). Overall, it was an excellent system which inevitably meant that it was abolished and replaced by something far less effective.

Nowadays, unless the case is very straightforward, in most FHDRAs, no agreement is possible apart from perhaps an interim agreement if you are lucky. The court then gives directions for the steps we have to take such as filing witness statements and for Cafcass to prepare a section 7 report giving independent recommendations to the court. Section 7 reports can take many months; 16 weeks is the norm. However, that delay is dwarfed by how long it will take the court to hold the next hearing, known as a Dispute Resolution Appointment (DRA). For example, I represented a father at an FHDRA in July 2021 where when I outlined a proposed timetable to the court, it had to tell me that the DRA could not take place until March 2022, 8 months later, because the court simply had no time to deal with the case until then. It is the closest that I have ever come to swearing out loud in court.

If agreement cannot be reached at the DRA, then the court will have to decide matters at a final hearing, which could be many more months afterwards.

When I tell clients that this is how long their case is likely to take, I can sense a growing level of disbelief in the client. They struggle to understand how it can take so long.

There are a number of reasons why the court is so slow.

Firstly, there have been years of underinvestment and underfunding of the justice system which has led to a vast backlog of cases in both the Family Court and criminal courts. (This is undeniably the case in the Family Court, but to be fair, it is by all accounts even worse in the criminal courts).

Secondly, the decline of legal aid in family cases has been a massive false economy. Both Labour, Conservative and coalition governments since the 1990’s have repeatedly failed to increase the legal aid payment rates, which led to most solicitors giving up legal aid work as they simply could not turn a profit doing it. Law firms are businesses, not charities, and the vast majority of law firms simply could not continue to undertake loss-making legal aid work.

Then, in 2012, the government withdrew legal aid in the vast majority of private law family cases (It is still available in public law family cases where local authorities are seeking care orders in relation to children who are believed to be at risk). In private law cases (i.e. cases involving disputes about children between private individuals, usually their parents), legal aid to cover solicitors’ fees is only available to people who are at risk of abuse or serious harm or forced marriage. I have lost count of the number of times I have received enquiries from fathers who are on low incomes and who want legal aid and I have to tell them that not only do I not undertake legal aid work anymore, but more importantly they simply are not eligible for it as they are not domestic abuse victims. This comes a very nasty surprise to some of them. More than one of them has told me that they will ring another solicitor to see if they can get legal aid there, evidently not believing me when I reassure them that they will not.

A further by-product of restricting legal aid to parties who allege that they are victims of domestic abuse is that it now features in a much larger number of cases. Domestic abuse is a very serious problem, and is far too prevalent in society. Greater awareness of domestic abuse, especially non-physical abuse, such as coercive control, and emotional, psychological or financial abuse, is no doubt part of the reason for this, but I am afraid that it would be naïve to assume that all these claims are true. The majority probably involve genuine abuse allegations, but the sad reality is that some people may be claiming to be victims of domestic abuse so that they can obtain legal aid to oppose their ex’s application. This adds to the problem as there then may need to be a fact-finding hearing before the court can decide whether or not to order that a father has contact with his children.

The government’s reason for restricting legal aid was that it felt the people should pay their own legal fees rather than expect public money to solve family disputes. The changes were brought in as a time of enormous pressure on public finances following the financial crisis of the late 2000’s. I doubt it has saved the government much money and it certainly has not helped with the administration of justice. The Family Court is simply overwhelmed by the number of applications with which it now has to contend.

This is because, contrary to the belief of certain MPs, having a lawyer involved in case does not automatically encourage the parties in their case to litigate through the court. What the government failed to take into account is that family lawyers were gatekeepers for the system. We filtered out cases that were trivial or capable of being resolved by agreement. We steered clients whose cases were suitable for mediation to family mediators who were often able to help the parties reach an agreement without the need for court proceedings. I would often have fathers and mothers consult me, telling me that their ex wanted them to mediate and that they were going to refuse to do so; I would tell them that if they did not mediate, the next step would be court proceedings which would be expensive, stressful and lengthy and might not result in the outcome they wanted, whereas mediation would be quicker, cheaper (and possibly legally aided) and would allow them to keep control of the outcome rather than putting it  in the hands of the judge. Without solicitors at this early stage providing early advice, more and more people are going to court and failing to mediate when is suitable.

Thirdly, there has been COVID, which has aggravated the pre-existing problems in the system. All hearings now take place remotely, by telephone or the court’s Cloud Video Platform. There are some advantages in having remote hearings, especially for certain types of cases at an early stage, but the reality is that there is nothing like physically being at court and having the judge breathing down your neck to focus the mind on negotiating a deal.

There will always be some cases that have to be resolved by the court, but the court system is clogged up with cases which should be going through mediation or where solicitors should be able to negotiate an agreement without the need for litigation. A large number of these cases do not use mediation simply because although the proposed applicant might be prepared to mediate, the proposed respondent simply will not do so often because she or he has not received legal advice from a solicitor at an early stage.

In cases where mediation is not suitable, there are other alternatives to court such as negotiations or arbitrations.

However, all of the alternatives to court have one big flaw; they all require co-operation by the respondent. If the respondent refuses to mediate or negotiate or to commit to the legally binding arbitration process, then the only remaining option is court. This means that while court is often the worse option, it ends up being the only option.

The Secretary of State for Justice and Lord Chancellor, Dominic Raab MP, recently called for a “drastic and bold” solution to the delays in the Family Court. To this I would simply say – bring back proper family legal aid for people on low incomes, rather than restricting it. Is that sufficiently drastic and bold for you, Lord Chancellor?

3 January 2022

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