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Courts in crisis: beating the backlog

Lockdown measures implemented in response to the pandemic have challenged public services traditionally delivered face-to-face, including the justice system. But here Georgie Hall, partner and head of the personal law services division at Prettys Solicitors, Ipswich, explains how limited access to an already over-burdened court system is causing a crisis for people in critical situations.

Back in March many things stopped overnight. Schools closed. Bars, hotels, gyms and restaurants shut down. People started working from home. Parks and museums ceased operations.

But while lots of families pressed pause, others found existing struggles ramped up a gear.

Incidents of domestic violence rose. The number of couples seeking to separate grew. And those already pursuing divorce – and the child and financial arrangements that go with that – found they were stuck between a rock and a hard place as the entire justice system ceased almost overnight.

It took five days after the prime minister announced the first lockdown for the first virtual hearing to find its way into the Family Courts and, although this then paved the way for future hearings to be conducted online, it has not been “business as usual”.

After all, this court was already overburdened before coronavirus took over. There were long delays in listing cases and now there is a significant backlog caused by reduced court activity over the past six months.

Georgie Hall of Prettys
Georgie Hall

What does this mean?

Dramatically overhauling the entire working practices of the family justice system was not on the agenda for 2020.

If it had been, one can only imagine that remote courtrooms and socially-distanced contact between children and parents would have not been part of the new design.

But that is what the new normal looks like – and many are struggling with it.

Firstly, there is the problem of managing court cases virtually. By the beginning of April, 90% of all hearings were being heard remotely and many solicitors found that the deeply sensitive interpersonal communication required in their profession was not possible via phone or video link. 

Secondly, there have been significant difficulties with delays.

Resolution – the family lawyers affiliated body for good practice – has recently confirmed that the length of time to get a divorce is getting longer due to significant backlogs coupled with a wave of new applications. The minimum total length time for obtaining a divorce now stands at approximately 44 weeks. And now we are into a second lockdown so this is likely to increase.

Finally, courts are having to prioritise work as that which must be done, that which will be done and work that they will do their best to do.

Divorce and financial matters fall into the final category, matters relating to children into the middle category and only care cases, those relating to child abduction and urgent children applications fall into the first.

Georgina Rayment who heads the family team also confirms that the situation is capable of manipulation. People, cynically aware of the short comings, are using this time to alter the status quo on child arrangements knowing it will be months before the other parent can get a hearing that can change events and by that time there is a new status quo in play.

The situation is causing additional tensions and conflicts.

Although this system prioritises those most in need, many – such as parents with altered child care arrangements or victims of domestic violence – are able to fall through the cracks.

And those whose cases are not deemed urgent are left frustrated, with no clear idea of when they will reach a resolution.

Another way

Delays have meant that lots of families are looking to explore alternative dispute resolution methods.

Working round table, whether virtual or not, and using as much discussion as possible to bring issues to light and then resolve is quicker and cheaper than court for most people solution.

It also offers the repeat option of a constructive way forward if new problems crop up or arrangements have to be further reviewed. Documents can be drawn up to reflect agreements whether on finances or children. These include drawing up separation agreements – for those wishing to regulate the terms of their separation on an interim basis – and parenting agreements, which lay out co-parenting terms.

Alternative methods also include mediation where professional mediators are able to conduct sessions to facilitate discussions between separated couples and solicitor-led negotiation.

The Prettys family team have seen increased numbers of mediation referrals although this may also link to their lead accredited mediator, Victoria Mayhew, offering virtual as well as face to face mediation options to allow for the greatest flexibility of service.

There is also arbitration where parties can engage in a process similar to the court process but are able to appoint their own private judge to make a decision and hybrid round table, mediation and arbitration methods that can be tailored to suit certain cases.

What’s the verdict?

Family lawyers are all too aware of the pre-COVID delays in fixing hearings and processing court documents, especially in private law children cases and divorce and finance cases.

But with this overworked court system being stretched to breaking point and handling the backlog remotely, the wait for court process right now could be unprecedented.

Urgent matters are being tackled – which is a relief. But if your case is not deemed critical and you want some certainty and a quicker resolution in the current climate, communication is the answer.

On top of speeding up the process, alternative dispute resolution also comes with the added bonus of being more cost effective too.

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