Family Court Backlog Could Cause Delays Until 2021

July 06, 2020  |   Posted by :   |   Blog

As Family Court delays stretch into 2021 (or beyond), private hearings may turn out to be a much quicker and cost effective alternative to resolving separation disputes and children’s issues.

At the beginning of June the President of the Family Division Sir Andrew McFarlane published ‘The Road Ahead’, a guidance document to provide ‘a broad framework’ for the Family Court over the next six months and beyond, which suggests that delays in dealing with family law cases may extend well into 2021.

‘The Road Ahead’ looks at how the Family Court has handled social distancing, remote hearings, timescales for full operation, and dealing with the backlog of applications and cases that have been adjourned or delayed since the beginning of lockdown. The document also acknowledges the rise in applications for domestic abuse injunctions in certain inner-city areas, and anticipates a surge in the volume of child protection cases once schools and social services are able to function more normally.

The number of applications concerning children’s cases has continued at the same rate as before the Coronavirus outbreak, and the courts are now attempting to deal with this high volume of backlogged cases with radically reduced resources and ongoing social distancing restrictions. So far, the courts have been focusing on the most urgent children’s cases, but Sir McFarlane acknowledged the need for a more sustainable plan going forward.

“We have reached a juncture in the Family Court’s journey through the COVID 19 crisis when it is both possible and necessary to take stock and to consider the road ahead. It is possible to do this because, in contrast to the early weeks, there is now a bedrock of experience of remote working. […] It is necessary to look at the road ahead because any earlier rose-tinted thoughts that ‘this will all be over by July’ have sadly evaporated and it is now clear that, whilst the situation of total lockdown may be gradually relaxed, the need for stringent social distancing restrictions is likely to remain for many months to come.

“We must all take on board this significant change in perspective which will have an impact on every case management decision. Apparent potential unfairness which justified a case being adjourned for what was hoped to be a relatively short period of time, must now be re-evaluated against this much longer timescale. The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties.

It now seems sensible to assume that social distancing restrictions will remain in place for many months and that it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021.”

What this means is that there are likely to be significant delays in the court dealing with applications and cases for the foreseeable future. At the moment, we are taking the view that if you made an application today and were unable to settle your case via negotiation (which is true of the majority of cases), you could realistically be looking at a 2022 court date for your final hearing.

It is a sad truth that the courts simply do not have sufficient technology or capacity to deal with the current caseload, but what if you can’t wait another two years to resolve your issue?  

Well, private hearings could offer a more efficient (and, in the long run, more cost effective) alternative since they do not require the service of a judge. A competent and experienced barrister or solicitor will have more than enough expertise to arrange a simple private hearing – especially if they also have arbitration accreditations – and is likely to have the necessary tech to do so remotely. While you will of course have to pay for the service, in the long term it will may well be a better economic choice as you won’t have to continually update your documents or have your case reviewed, all of which bring their own costs. It also means that your case will be over and done with as quickly as possible, reducing the stress of uncertainty, delays, and the financial repercussions of having to wait so long for a final decision.

For more information and advice on private hearings, out-of-court alternatives to dispute resolution, and anything else to do with separation, divorce, children’s issues, and family law, speak to one of our down-to-earth family lawyers. We offer a free 45-minute initial consultation to help you explore your options, so get in touch and see how we can take some of the weight off your shoulders.


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