The quiet crisis in the family courts of England and Wales

The quiet crisis in the family courts of England and Wales appears to remain under the radar, and was most definitely not a ‘sexy’ policy during the 2024 General Election.

Whilst the more visible policies relating to criminal law, prisons and sentencing and violence against women and girls are extremely important, they do appear to be starving serious issues within the family courts of any oxygen. Is it time for the press and, crucially, the public to wake up to this crisis very much on their doorsteps?

Time is of the essence

People encountering relationship and childcare problems which cannot be resolved outside of the family court system continue to encounter extremely long delays in even reaching the first step of, for example, obtaining a child arrangements order which can decide who a child primarily lives with and how often they should see the non-resident parent. Such orders are crucial to families being able to co-parent effectively and for the best interests of the children to be safeguarded.

Take, for example, the case of a non-resident father being denied contact with his very young child. Generally speaking, contact will have been denied for several weeks before a father will explore legal advice or take steps to commence court proceedings. Already, the young child will not have seen their father for what will be, for them at that age, a significant amount of time.

If the father starts court proceedings to reinstate contact, he must first have tried mediating with the mother of his child. Another week or two for an appointment with a mediator, and another chunk of absence from his child’s life.

If mediation is not successful or the mother declines to engage, the father can then start proceedings. If he is confident enough to do this himself, the application to the family court can be made very quickly online, but the first hearing will not be scheduled for at least six weeks.

If the father wants legal advice first but cannot afford to pay legal fees, as so many people can’t, he may be lucky enough to find a free law clinic or other such organisation that may be able to help him. Probably another week or two to wait for an appointment with them.

In essence, a father with no funds to instruct a solicitor to act for him may end up being absent from his child’s life for at least 12 weeks, depending on his local court’s current backlog of similar cases. Where the child in question is, say, one year old, an absence of three months represents a quarter of their whole life without seeing their father. This is just one example of how delays in the family courts are impacting families, day in, day out.

An overlooked everyday issue

Given that there are 2.4 million separated families in the UK, this is not a niche problem. It is surprising, then, to find theses issues are absent from the current Labour and Liberal Democrat manifestos.

The Conservative manifesto does make reference to reducing the backlogs in courts and proposing further investment in more sitting days and court maintenance, but the perceived driver again seems to be issues within the criminal courts, which garner more publicity.

Why such investment hasn’t been made over the past fourteen years would be a question for a political journalist to ask, but the interesting point is: why didn’t the public, whose daily lives are routinely impacted by the problems in the family courts, not make this an electoral issue in July of last year?

Years of demonising the legal profession (judges as ‘enemies of the people’, etc) have created a vacuum between the public’s perception of the profession and the reality when they come up against the legal system personally. This vacuum has been filled with populist outrage at shortcomings in the criminal legal system and a failure to appreciate the other areas of life that are touched by law.

This is an access to justice issue, but there appears to be a lack of public perception that this too is ‘law’ even though it has nothing to do with crime. It is, in fact, an aspect of law that they will be far more likely to experience themselves than the criminal law system.

Perhaps, if responsible politicians, in pursuit of those elusive ‘extra’ votes to push their parties over the line, focussed on and took the time to explain policies that would have a tangible impact on the electorate, such as reducing the backlog in the family courts and re-introducing Legal Aid for initial general advice on private family law matters, this would be a good start.

That ship appears now to have sailed, and we remain fixated on the more high profile policies relating to the legal system mentioned at the beginning of this article.

Maybe next time?

Sarah Calder, Director, ARU Law Clinic