Private sector courts – the future of family law

We have all become accustomed to a reduction of public services in this age of austerity and nowhere is that felt more sharply that in the family courts. As family courts continue to be threatened by closure, and the remaining courts dealing with an increase in workloads as they manage a greater number of litigants in person, as a result of the demise of legal aid, judges at all levels are clearly overstretched with both public and private law family cases. To combat the impact on private law finance cases, there has been a rise in the number of matters searching out a private sector alternative, in the means of private sector courts.

Where proceedings for financial remedy have been issued, parties will usually attend an Financial Dispute Resolution hearing. The FDR enables parties to put submissions to the court on how the matrimonial assets should be split, before the judge provides a non-binding indication on how he/she sees the settlement progressing. With the courts oversubscribed, parties and their advocates have experienced situations which see a judge being unable to provide an appropriate amount of time to consider all submissions in reasonable depth, due tot he weight of other matters to be heard on the same day. In short, some parties to an FDR may be unable to maximise their interaction with the court and may feel that any guidance given by a judge has not been provided with the full consideration of all the relevant information.

Private sector FDRs are frequently conducted by an experienced legal professional, e.g. retired judge or QC, who will deal with only one case at a time. The judge/QC will be available throughout the day and will have had plenty of time to read the hearing bundle before the FDR, as well as hear submissions from both parties in significant depth, thus providing the parties with a more considered opinion on settlement.

Supporters of this move towards private FDRs argue that they free up court time, enabling those that can’t afford the service to rely on the more “traditional” route. However, if all matters are not dealt with consistently from a single central body, as would surely be a result of a two tiered system, the courts would be unable to keep the law relevant and up to date. This exposes society to risk of inequitable justice. While there is no simple solution to a complex problem, it is incumbent upon the court system to maximise efficiency and quality of service as a public body, to ensure that users are not driven aware to seek justice from avenues that are not available to all.

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