Financial Remedy and Private Law Children barrister, Patrick Goodings, provides a review of the Private Law aspects of the Family Court Statistics for Quarter 1 of 2023 recently published by the Ministry of Justice. The key points are as follows:
- There were 13,936 new private law applications made in January to March 2023, similar to the equivalent quarter in 2022, with 20,575 individual children involved in these applications.
- The number of private law disposals in January to March 2023 was 42,084, a slight increase of 0.6% compared to the same quarter in 2022. The number of private law cases disposed (11,976) reached the highest in its series and increased by 8% compared to the same quarter in 2022.
- In January to March 2023, it took on average 47 weeks for private law cases to reach a final order, i.e. case closure, up almost 4 weeks from the same period in 2022. This continues the upward trend seen since the middle of 2016, where the number of new cases overtook the number of disposals.
In short there were nearly 14,000 applications made in this period. More cases have been disposed of than the same quarter in 2022, however the number of applications being made is still more than the number of applications being disposed of and it takes on average 47 weeks for Private Law Cases to reach a resolution.
Alongside these statistics the MOJ has just concluded a consultation entitled ‘Supporting earlier resolution of private family law arrangements - A consultation on resolving private family disputes earlier through family mediation’. The clear tenor of this consultation is in discouraging parties from attending Court. Notably the foreword from Dominic Raab MP makes the following points:
- The Government believes that more disputes could be resolved without going to a courtroom, sparing families from this unnecessary stress and children from avoidable anxiety.
- The clear exception to this would be with cases involving domestic abuse or child protection concerns – these cases must go to Court.
- Providing families with an affordable, appropriate and effective alternative to Court will help achieve this.
- Mediation can play a role where there is the will to find common ground – not just between separating parents or couples but other family members as well. This is clearly demonstrated by the success of the Government’s Mediation Voucher Scheme.
- The Government is determined to build on that success – to make sure that, where it is safe and appropriate to do so, parties in private family law disputes make reasonable attempts to mediate and reach solutions before applying to the Courts as a last resort.
- The Government wants to empower judges to hold accountable those who do not engage seriously with mediation, and who draw proceedings out unnecessarily by refusing to reach reasonable settlements.
- These bold proposals will make for a less adversarial approach to resolving family disputes – an approach that puts children’s welfare first.
The consultation papers, as usual, are lengthy. What is clear is that there is a renewed push towards mediation and out of Court settlement. Additionally there is the rather broad brush ambition to ‘empower’ Judges to ‘hold accountable’ those who not ‘engage seriously with mediation’ and ‘draw proceedings out unnecessarily’.
This sounds like a refocusing on costs orders, which comes with some interesting difficulties. In Re RR Costs, s.91(14), Welfare [2021] EWFC 100 Williams J sets out a helpful summary of the Law on Costs in Children proceedings:
72. The combined effect of the Civil Procedure Rules 1998 and the Family Procedure Rules 2010 set out a framework to deal with the award of costs in family cases. The combined effect of FPR 28.2 and CPR 44.3 is that the court may make such order as to costs as it thinks just and provides for the application of the CPR framework save for the disapplication of the usual rule that the unsuccessful party will pay the successful party's costs.
74. The following principles can be distilled from the leading cases.
a. FPR 28.1 provides that the court may make such order as to costs as it thinks just. This is 'a rule of court' within s.51 Senior Courts Act 1981 which provides that costs are in the discretion of the court. FPR 28.2 applies CPR 44 (except rules 44.2(2) and (3) and 44.10((2) and (3) ). CPR 46 and 47 and 45.8 also apply.
b.The court has a discretion as to costs
c. In deciding what order to make the court will have regard to all the circumstances including the conduct of all the parties. Conduct includes:
- Conduct before as well as during the proceedings and in particular the extent to which the parties followed any pre-action protocol.
- Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.
- The manner in which a party has pursued or defended the case or a particular allegation or issue and
- Whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.
- Whether a party has succeeded on part of its case, even if that party has not been wholly successful, and
- Any admissible offers to settle.
d. The effect of the UKSC decisions in Re T and Re S (building on R-v-R [1997] 2 FLR 95 FPR28 and Sutton-v-Davis) in a case such as this is that the court starts from the no order principle because proceedings concerning a child are partly inquisitorial and the spectre of costs should not discourage participation in the proceedings or the possibility of cooperation in the future. In children proceedings one can generally assume both parties are motivated by concern for the child's welfare.
e. In Re: S at paragraphs 30 and 31 the Supreme Court said: secondly, however, are there circumstances other than reprehensible behaviour towards the child or unreasonable conduct of the proceedings which might justify a costs order in care proceedings? It is clear from the authorities cited above that there may be other such circumstances in private law proceedings between parents or family members……..I do not understand that Lord Phillips of Worth Matravers giving the judgment of the court in re T was necessarily intending to rule out the possibility that there might be other circumstances in which an award of costs in care proceedings might be appropriate and just.
f. The principles can be applied in all kinds of proceedings concerning children regardless of whether the proceedings involve local authorities or private parties or whether the hearing a welfare, a fact-finding hearing or a mixture. Orders for costs may be made where a party's conduct has been reprehensible or significantly unreasonable but not otherwise. Conduct may include that before as well as during the proceedings and all the manner in which a case has been pursued or defended.
g. Making an order for costs may diminish the funds available to meet the needs of the family equally not making an order may also have that effect.
h. The orders the court may make include a proportion of a parties costs, a stated amount, costs from or until a certain date only, costs incurred before the proceedings have begun, costs relating to particular steps in the proceedings, costs relating only to a distinct part of the proceedings and interest of costs.
i. The court may make an order for costs subject to detailed assessment or may make a summary assessment.
j. The amount of costs will be assessed on a standard or indemnity basis, but the court will not allow costs which were unreasonably or disproportionately incurred or are unreasonable or disproportionate in amount. If assessed on a standard basis the costs will only be allowed if they are reasonably incurred and proportionate having regard to the matters set out in CPR 44.3(5). Doubts will be resolved in favour of the paying party. The court must have regard to all the circumstances and to the matters set out in CPR 44.4(3).
Where, therefore, is Family Justice heading?
It is somewhat confusing therefore that the MOJ wants to empower Judges to do something they are already empowered to do. It may that this empowerment is a more of a ‘culture shift’, however it remains to be seen how any culture shift gels with the leading costs authorities.
The rhetoric is concerning; the Government says there are too many applications, they are taking longer and longer, the Courts cannot handle the current volume and unreasonable parties need to be punished.
This discussion raises wider questions such as:
- How many cases would actually reach mediation when all cases which involve domestic violence or child protection issues are removed?
- How it is said that any mediated agreement would bind the parties and what procedure would be followed if those matters are not to go to Court?
- How much of the 47 week average time for proceedings is taken up waiting for Court hearings, s.7 reports, disclosure from Police, G.Ps and other professionals.
- Is this not just one cog not turning correctly in an underfunded system. The problem is global and systemic.
With all of these questions, the clear benefit of having early, expert legal advice is obvious. If parties are to be punished in costs for the nature of their application and willingness to mediate then careful case preparation is essential.
Binding arbitration looks like a fast track alternative, allowing litigants to resolve matters incredibly quickly. Trinity Chambers has a number of specialist arbitrators, and barristers who specialise in representing litigants in arbitration. Equally Trinity Chambers has a number of specialist mediators.
There are significant benefits of resolving matters outside of Court but any decisions should be informed decisions based on a foundation of sound advice.
The pressure that is being placed on the Family Justice System to dissuade people from attending Court is likely to mean that important issues for people are overlooked, or never explored with vulnerable parties risking themselves being side lined.
What appears to be clear is that Pauffley J’s altar is getting ready for the next sacrifice.
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