Our Family Law Court System is Struggling – But There is Another Way

The Court system is creaking – and the cracks are there for all to see. Backlogs mean 100,000 children and their families are currently waiting the best part of a year for a Family Court Judge to decide their cases. Here, Nick Robertshaw examines the issues – and explains why increasing numbers of people are turning to Arbitration.

The Perfect Storm

Family Courts are sitting right in the eye of a perfect storm – and recent Ministry of Justice (MoJ) figures are a stark illustration of the damage being caused. They reveal that the average child custody case – currently referred to as ‘child arrangements’ cases –  is taking 11 months to be resolved. That comes as the MoJ also revealed there are some 100,000 children involved in child arrangements cases. The effect?  These children, along with their families, are waiting the best part of a year for a Judge to decide what should happen in their case.

Underfunding has been a blight on the UK’s Courts for many years – and it really shows. Many buildings are in a state of disrepair. Facilities are often inadequate. Cases are delayed for months and years. Judges feel the pressure to hear as many cases as possible.  Covid still casts a shadow, with the knock-on effect of the pandemic contributing to the backlog.  Even getting a simple update on your case can be a nightmare as phones go unanswered and staff struggle with the workload.

Unacceptable Facilities

Too often, Court Centres are not fit for purpose. As well as being in a poor condition, their facilities are often inadequate. A striking example of this is in Peterborough. Here, the Family Court waiting area is separated by a set of double doors from the public waiting area provided for the Crown Court. But the Family Court waiting area is only a quarter the size of that for the Crown Court. This means the Crown Court area has to be used for the ‘overspill’ of Family cases. The unacceptable result? Vulnerable people involved in traumatic Family cases, such as disputes involving children or divorce, are cheek by jowl with those involved in the most serious of criminal cases such as rape, murder and other violent crime . This continues due to inadequate facilities and underfunding. When I started out as a Solicitor a little over 15 years ago, the local Court had its own canteen and a library. Now, you’re lucky if the vending machine works – there’s certainly no library anymore!

Another Way

The Court system is currently run on a shoe-string budget, by overworked Judges and support staff, in an environment that’s not designed for Family Law issues and where it will probably take the best part of a year to deal with your case. It doesn’t have to be like this. Arbitration may be the answer.

What is Arbitration?

A simple analogy could be to see Arbitration as like ‘going private’ as an alternative to using the NHS. In our example, the Court takes the place of the NHS, and Arbitration takes the place of the private health provider. But crucially, unlike having ‘private’ medical treatment, Arbitration in a Family Law dispute is not necessarily any more expensive.

This is because:

1. If you choose Arbitration, although you are still going to have to pay your Solicitor’s costs and there will also be the cost of the Arbitrator, this should be offset by needing only one, or at the most two, ‘hearings’.
2. Going to court entails the potential for three separate hearings, which, of course, increases legal fees.
3. As the parties pay the Arbitrator’s fees 50/50, the cost of the Arbitrator is not going to be paid just by one party, unlike Court fees which are solely paid by the person applying to Court.

Arbitration is available for most Family Law matters and is becoming increasingly popular due to its advantages over the Court system. In Arbitration, a private Judge  – usually a retired Judge or Barrister – decides the issue in question. He or she determines how assets on separation should be divided or what arrangements should be made for children. The decision of the Arbitrator is final and binding on the parties.

What are the Advantages of Arbitration?

There are a number of other advantages:

• The Arbitrator will specialise in Family Law. Many people going to Court assume that the Judge is a specialist in the issue they are dealing with. However, spoiler alert! That is not always the case. Judges tend to come from a Family Law or Litigation background, having generally worked as Solicitors or Barristers. Those judges from a Litigation background may not have the experience and specialist knowledge as those who came from a previous Family Law career. Magistrates also deal with Family Law cases. These are members of the public who have no legal training but decide the majority of cases involving children. However, if you use an Arbitrator, they will be a retired Judge or Barrister who specialises solely in Family Law.
• You select the Arbitrator. Not only will the Arbitrator be a specialist in Family Law, but you can select one who specialises in your specific issue – for instance matrimonial finances, children matters and/or cohabitation disputes. In Arbitration the parties involved can pick the right Arbitrator for their particular dispute, unlike in the Court process, where they are allocated a Judge or Magistrate.,
• Cost. There is no reason why Arbitration should be any more expensive than going to Court. Unlike the Court process where the parties have  little control over how many hearings there are, or the length of those hearings, with Arbitration this will all be agreed from the outset. This means there should be far more certainty in terms of costs.
• Speed. With Arbitration, the dispute can be resolved in a timescale agreed between the parties. It cannot be in the best interests of children that their situation is uncertain for the best part of a year, potentially longer. The Courts accept this but cannot deal with cases any quicker due to backlogs
• Location.  In my view  Court buildings and their facilities are not fit for purpose. With Arbitration, you choose the location. It could be at a Solicitor or Barrister’s office, or it could be at a hotel conference suite.
• Proper consideration of your case. With the current Court backlogs, Judges are under more pressure than ever to deal with cases quickly. It is actually the case that most Court hearings are only an hour long. This allows limited time for the issues to be considered – and heightens the potential for ‘rough justice’.
• Agreed timescales. With Arbitration, an agreed amount of time will be set aside for the Arbitrator to consider the documentation, listen to both sides and make a considered Judgement.

Is Arbitration Binding?

The short answer is ‘yes’. Before starting out on the Arbitration process, the parties must agree that they want the Arbitrator’s decision to be binding. Assuming both parties do agree that they want to use Arbitration to resolve their dispute, they will then both sign a contract confirming that they will be bound by the decision. By signing this contract, the parties agree that they cannot apply to the Court at a later date for a Judge to reconsider the case.

Of course, there must be checks and balances. As with the Court process, there can sometimes be a decision made by a Judge that is unfair, or wrong.  In these rare cases, there is an appeal process through the Courts. The same is true of Arbitration, and either party can challenge the Arbitrator’s decision in very limited circumstances.

These are:

1. If there has been a serious irregularity that has caused, or will cause, substantial injustice. This basically means that the Arbitrator made an error in terms of the facts.
2. On a point of law. This basically means that the Arbitrator misapplied the Law.

A challenge to the decision on one of the above grounds would have to be made within 28 days.

As with the Court process, it’s not possible to challenge the Arbitrator’s decision simply because one party doesn’t like it. Therefore, save for the Arbitrator misapplying the facts or the Law, the decision of the Arbitrator will be binding.

Typical Arbitration Process

Below is a very brief rundown of the stages of Arbitration:

Stage 1 – Agree to use Arbitration.

Stage 2 – Agree the Arbitrator and the issues that are to be addressed.

Stage 3 - Sign the binding agreement.

Stage 4 – Prepare for the Arbitration session.

Stage 5 – Parties attend at the Arbitration session.

Stage 6 – Arbitrator provides their decision. This is binding.

Next Steps

If you feel that you’ve reached a stage in your separation or Family Law issue where Court feels like it’s the inevitable next step, it may be worth considering Arbitration instead. In the vast majority of cases, it is likely to be the best way forward.