More family cases could be settled out of court to ease ‘overwhelmed’ system

More family cases could be settled out of court in a bid to ease the weight on an “overwhelmed” legal system dealing with an “unprecedented” workload.

Under the plans, fewer cases involving children would come to family court and instead be resolved by other means including mediation and counselling.

The proposals published on Wednesday are in response to an “unsustainable volume of cases relating to children”, about which president of the family division Sir Andrew McFarlane expressed concerns last year.

In May Lady Justice King said family courts were overwhelmed with applications from council social services about childcare, leaving judges under extreme time pressure when giving rulings.

The recommendations are under consultation until September 30. If approved, they could come into force early next year.

The plans do not suggest changes to the law but seek to improve the practices and procedures behind family cases coming to court, Sir Andrew said.

Speaking to reporters, he said that since 2016 there has been a “rising tide of work”, likening the current situation to “trying to run up a down escalator”.

The number of applications that year for care or supervision orders or supervision made to courts by council social services departments across England and Wale rose by 25% and has largely remained the same, he said.

Sir Andrew said: “We don’t know why that’s occurring and do not know how (the court system) is going to cope with that demand.

“We are doing our best and everyone is working flat out.

“But delays are creeping in and we need to do something to address this.”

Two working groups made up of judges and professionals looked at how public law cases – brought by bodies like council social services – and private law matters – where parents or their legal representatives launch proceedings – were being handled by courts and how this could be improved.

Courts have become the “default venue” for resolving family disputes, according to the findings.

Between April 2018 and March 2019 there were 53,164 new private law cases brought to the family courts, involving 123,334 children in England and Wales, according to Ministry of Justice figures.

About a quarter of cases do not raise child protection issues and could be dealt with out of court, it is proposed.

Mr Justice Cobb, chairman of the private law working group, said the focus was on reducing the number of cases coming to court where no child protection matters are raised.

He added: “We consider it very likely that any case that raises a safeguarding concern will still come to court.”

Under the plans, repeat applications would be handled by the same judge and pushed through the court system so they can be dealt with quickly.

Families would be encouraged to consider mediation in the first instance rather than going to court and there would be efforts to make the process more affordable.

Local family justice boards around the country would help to oversee an alliance of services which could help families resolve matters before they take steps to embark on court proceedings, the plans suggest.

The proposals recommend work is carried out by councils before a case gets to court and a shift in culture so legal advisers try to stay out of court.

Better support for families before a baby is born is also suggested.

The report into public law in the family courts said: “A significant proportion of the cases currently presenting for urgent applications involve newborns and infants.

“These cases come with a very high degree of distress.

“They pose significant challenge to all involved in the decision making.”

Judges insisted the plans were not a bid to disband the 26-week deadline for tackling cases.

Mr Justice Keehan, chairman of the public working group, said: “But there are some cases because of the circumstances of the individual case where more time is required.

“There are some cases where decisions are being rushed through (because of the deadline).”

Initially it is hoped the changes can be made to existing working practices and procedures without the need for additional funding or resources.

But there would need to be investment in the long term, reporters were told.

The public law report also calls on the Government to carry out a review of staffing and resources in the family justice system with “more effective systems for recruitment and long-term planning by the MoJ and HMCTS”.

In the wake of legal aid budget cuts, more parents are representing themselves in court proceedings, which can lengthen hearings.

As a result, judges have had to turn mediator in the court room between rowing couples.

They have “developed a new set of skills to deal with highly conflicted individuals”, Sir Andrew said, explaining the legal context, establishing the crux of the case and ensuring both sides put across their points in an “orderly way”.

He added: “There are many examples of judges who face security issues in dealing with private law cases which are of very considerable concern to us.”