‘Interesting Times’ ahead in family law?

President of the Family Division, Sir Andrew McFarlane, addressed the Resolution Conference on 5 April and spoke about major changes that were likely to impact family law in the next year.

Along with Brexit, he addressed the increasing case load of the family courts and called for radical reform to working practices and processes. There are four projects currently underway that attempt to address the problems of the increasing caseloads;

  • Digitising the entire court system
  • Reforming current practice in public law child cases
  • Reforming practice in private law children cases
  • Establishing a Financial Remedies Court.

Digital divorce

Around 35,000 people have issued their own divorce petitions online since mid-2018, which equates to around 55 per cent of all divorce petitions issued by litigants in person during the past ten months. Although there may have been concerns about an increase in the error rate once the system was digitised, the current rate is 0.4 per cent for digital petitions, while the paper rate was 40 per cent. Interestingly, 84 per cent of people who have used the online process have said that they were satisfied with the process.

A pilot scheme is also under way that will allow family law solicitors to file petitions online, and work is also underway to enable decree nisi and absolute to be applied for online, with a view to  the vast majority of divorce proceedings being conducted online by the end of 2019, through Courts and Tribunals Service Centres in Stoke. The centralisation of divorce centres was described by Sir Andrew as an “unhappy state of affairs” and he has stressed to HMCTS that the proposed centre in Stoke needs to work more efficiently and without the delays experienced using the Divorce Centres.

Financial remedies

The Financial Remedies Court Pilot is underway in Birmingham, and those involved are considering the idea of a revised Form D81 that can be used along with digital services to help researchers harness data. The data will be used to produce schedules or tables identifying outcomes in typical cases across a range of set variables, giving family lawyers a resource similar to the type used by personal injury litigators when assessing compensation claim amounts.

Family law applications and proceedings

With regard to the continued increase in public law applications made by local authorities, Sir Andrew detailed three key areas that might benefit from closer analysis. A working group should publish an interim report on the potential for reform in relation to public law children cases in early May

On private law children cases:

  • There are around 8 million families with dependent children in England and Wales;
  • Around 130,000 couples with dependent children separate every year;
  • 50,000 of those will be involved in private law court proceedings.

Sir Andrew described figures of 10 per cent of couples needing to resort to court proceedings as an ‘urban myth’ saying that the actual figure was more like 38 per cent. Commenting on the problem, he said;

“Cases of straightforward relationship dysfunction, not involving abuse or a need for protection, should not need to come before a magistrate or judge for resolution.”

He also mentioned that as pending video link technology  would soon be available in every court, it seemed sensible for it to become the norm in the Family Court, and for emergency without-notice applications like non-molestation injunctions under the Family Law Act, to be conducted over the telephone. The decision as to whether a telephone link was appropriate would be at the judge’s discretion in each case.

For the full text of the speech, click here.

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