There has been a tsunami of applications to the family courts with all staff involved in cases working at the outermost limits, a barrister has warned.
Sarah Blackmore, Barrister and Joint Head of Chambers, told an evidence session for the Children and Families Act 2014 Committee that the family courts are dealing with a myriad of cases every day, far more cases than prior to the COVID-19 pandemic, including care proceedings or private law proceedings and there is not enough court time, or court hours of judges, to deal with them.
“Because of the tsunami of cases, it is a case of fire-fighting all the time,” she said.
“As far as the private law cases are concerned, because the majority of litigants who come before the courts do not have access to legal advice to say whether or not it is the right way to go, applications are being served by those litigants in person which are then clogging up the system,” added Ms Blackmore, questioning whether it was a result of litigants not being able to access free or reasonably affordable legal advice.
Hannah Markham QC and Head of the Family Department at 36 Family added that casework in London local authorities – and she had been assured this was the case elsewhere in the country – had increased by 50%.
“Before the pandemic, they were dealing with 30-35 cases in Barnet, they are now dealing with 55-60. In Enfield, there are 93 current public law caseloads,” she said.
“The problem is linked to a myriad of issues, the turnover of professionals, social workers, experts, but also the delays. Normally you would get through your casework in the aspirational 26 weeks. Now it is six to 24 months. On top of that demand, you’ve got the delays in private law proceedings where people are waiting between six and nine months for their first hearing which is extraordinary,” she explained.
Lisa Harker, Director of Nuffield Family Justice Observatory, said the issue came down to family courts being asked to make decisions about families who are facing problems that the courts do not have the power to solve.
“So we are talking about families with mental health problems, experiencing poverty, facing discrimination, maybe having housing difficulties and so on where what is open to the court is largely the decision with whom the child should live.”
“Increasingly, the court is placed in a very difficult place knowing that families perhaps haven’t received the support they might have received prior to the point of court but also recognising that children are at risk of significant harm,” explained Ms Harker.
She referred to research carried out by the Family Justice Observatory which found that over half of the mothers in their study in Wales who subsequently went on to have their child removed had appeared at A&E or made a GP appointment for a serious mental health problem in the two years prior to proceedings.
“There’s clearly a mental health crisis going on, not a parenting crisis, but the courts are being asked to make decisions in those sorts of contexts,” she added.
Hannah Markham added that the mental health problem is not just an issue for adults with “CAMHS in crisis, so the mental health support for children is absolutely in dire straits at the moment”.
When questioned over the reduction in of legal aid for private law cases that resulted following the Antisocial Behaviour Act which came into effect in 1 April 2013 and how much during this crisis the lack of legal advice at the advice stage contributes to problems , Ms Blackmore said it is “critical for litigants to have that advice at the very beginning of what are in private law proceedings usually very heightened emotions and an inability to think straight”.
Ms Harker added: “It is definitely contributing to the backlog and the quality of evidence. We have done some research to look at the nature of applicants coming in to private law proceedings pre and post the ASBO Act and we found that there was initially a decline in the number of private law cases immediately after the legal aid changes were introduced, but cases have now returned to pre-ASBO legislation levels.”
“But there has been a decline in the number of applications from parents living in disadvantaged areas, young parents and parents with young children so we are concerned that there may be a “justice gap” going on aswell in terms of who does make it into proceedings which has been rather hidden from view to date and that will need to be considered,” she said.
Ms Markham suggested a number of measures to resolve the issues including more judges, more courtrooms but also incentivising people financially to settle using an Alternative Dispute Resolution as well as using arbitration and mediation more widely in private law proceedings. Furthermore, she questioned whether the international abduction cases which take an “inordinate amount of time” could have the reserved nature of the cases removed to enable more district and circuit judges to hear them.
“So there are some ways we can look at trying to manage and take the pressures off which will allow the pubic law cases and the very difficult private law cases in which children are suffering to have the court time, support and focus they need,” added Ms Markham.
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