All change please: the new family court

The organisation of the family courts in England and Wales is in the process of going through one of the biggest shake-ups in a generation. We have already seen drastic cuts to legal aid (all but removed for family court cases unless there is evidence of domestic violence or child abuse, although still available for family mediation), and the effect of this is having on people’s ability to obtain legal advice and representation. Linked to this is a predicted increase in the number of litigants in person, which we have already started to see. On top of this, next April, if everything goes to timetable, the three levels of family courts will be amalgamated into one big super court, to be called the Family Court.

The radical changes are being brought about as a result of the Family Justice Review Report chaired by David Norgrove which was published in November 2011. It recommended the introduction of a “single family court” to deal with a number of the current problems in the administration family justice. Those recommendations are now included in the Crime and Courts Bill, which is presently making its way through Parliament, and looks likely to be on the statute books next year.

Although the changes on the ground will not hit us all for a year, the President of the Family Division, Sir James Munby has issued some more details about how they will work in practice, so we thought it worth having a look at what will happen.

At the moment there are three levels of court which deal with family cases, which are the High Court, the county court and the family proceedings court (also known as the magistrates’ court). The appellate courts are also part of the system where necessary (Court of Appeal and Supreme Court), but they are not affected by the proposed changes.

As from April 2014, there will be one single family court dealing with all first hearings in family law matters. There will be one point of entry to the family justice system, rather than the three currently in operation for the different levels of court. At the moment, most cases are issued in the local county court, from which some cases are then “transferred down” to the Family Proceedings Court, and other cases may be “transferred up” to the High Court on the grounds of complexity. (Occasionally it happens the other way round too.) Some cases are issued directly into the family proceedings court, and a few are issued in the High Court. When the new Family Court is set up, all cases will be started in and heard by the Family Court, but will be allocated to an appropriate level of judge by the court staff. All levels of judges and magistrates will work alongside each other as “Judges of the Family Court”, each hearing cases of an appropriate level of complexity.

The new system will also iron out the strange anomaly that at present only certain nominated courts can deal with civil partnership dissolutions and care cases. All courts of the new Family Court will be able to deal with dissolutions as well as deal with child care proceedings.

Two types of cases will remain the preserve of the High Court, and will not be dealt with in the new unified Family Court. These are cases dealing with protection of children and incapacitated or vulnerable adults by wardship, and certain international cases dealing with children.

Although the idea is to have a unified Family Court, like the national Crown Court model in criminal matters, in reality there will be a separate Family Court for each given geographical area, operating out of the same court buildings as they do at present. However the structure will be formalised with a Designated Family Centre (“DFC”) under the control of the “Designated Family Judge” for each geographical area. This will provide the single point of entry for the issue of proceedings and management of the litigation process. There will be a centralised gate-keeping and allocation team who will send every new case to the appropriate level of judge and hearing centre.

This should be a vast improvement on the present system of parallel administrative systems for the three tiers of court, which can be hard to negotiate even for the seasoned professional. It makes excellent sense to try to streamline and unify the family court system which has been creaking under the strain of ever increasing numbers of cases and insufficient financial investment. It is not uncommon for cases to be heard in the wrong court, and transfers between courts are farily common, adding to delay and confusion.

The overarching principle will be that all locations where hearings take place will be managed and operated as a single family court. It would be nice if this restructuring and intelligent streamlining were to be matched with investment in the courts from the Government, but this unrealistic in the current economic climate. We are all for improvements to the system which will benefit families, and we hope that these reforms will address some of the delays and points of obscurity in the system. We expect more information to be released over the next 12 months and will of course keep this blog updated with the changes.

If you would like to discuss how the new system will affect you, do give Adam, Sue, Gail or Simon a call on 01223 443333.