The volume of work dealt with by family courts across England and Wales has posed a challenge for the judiciary, family lawyers and their clients for a number of years.

Figures published recently by the Ministry of Justice (MoJ) show that just under 260,000 new cases involving divorce, finances, child arrangements, adoption and domestic violence were started in 2024 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2024/family-court-statistics-quarterly-october-to-december-2024#divorce).

Although that is slightly down on the equivalent number in 2019, it represents an increase of 7.5 per cent on the total number of cases dealt with a decade ago.

Successive governments have launched a series of initiatives to reduce the strain which that load creates on the system and the impact which it has on those who find themselves reliant on it.

Yet the UK’s spending watchdog, the National Audit Office (NAO), has questioned whether those efforts have had any meaningful effect (https://www.nao.org.uk/reports/improving-family-court-services-for-children/).

The NAO’s role is “holding government to account”, in order to ensure efficient use of public money.

Its latest report, “Improving Family Court Services For Children”, paints a picture of dysfunction, the nub of which can be summed up in one observation.

“Children and families”, the NAO explains, “are still waiting too long to have their cases resolved”.

In December, it found that there were 37,541 outstanding private law cases (ie, those issues not involving local authorities or concerns about the welfare of children).

Furthermore, more than 4,000 children were the subject of public and private law cases which had still not been concluded after 100 weeks.

Unsurprisingly, the NAO made the point that “delays in resolving cases can lead to increased risk of harm to children and higher costs for the taxpayer”.

Those are the very stark facts, so what, one may ask, are the causes?

Given the NAO’s remit, its analysis highlights the broader structural or political factors, such as the fact that no single organisation has responsibility for family justice.

Instead, several different government bodies are involved, something which the NAO reckoned leads to “to weak accountability for overall performance”.

In addition, a “frequent turnover” in ministers responsible for the justice system has resulted in a lack of consistency and constant reassessment of what the priorities should be.

There is still no “joined-up plan” to determine if progress is being made and even how much is actually being spent on family justice.

Reading through the report, one conclusion resonated with me and, I’m sure, with other professionals working in the family court system. There is, stated, the NAO, a “lack of capacity in all parts”.

As I’ve been telling The Times’ (https://www.thetimes.com/article/5fd83e3b-314d-4d69-a3b6-ef9c7e4d2f0a?shareToken=a532515f32f53801419da32859066c55), that is a problem which we are sadly familiar with.

That shortfall in resources has consequence for every family involved but I don’t think that delays are in themselves the single biggest difficulty.

I believe that delay is a part of a cycle of difficulties which feed into one another, making the overall picture far worse.

Tackling those underlying elements could make a positive difference and I think that some of the solutions, at least, are at hand.

Many disputes which end up in court, for instance, could be far more easily and speedily taken care of away from court by the likes of arbitration, mediation or neutral early evaluation – a suite of methods known collectively as ‘Non-Court Dispute Resolution’ or NCDR, for short.

Last September, Sir Andrew McFarlane, the President of the Family Division of the High Court, published a document underlining the merits of NCDR (https://www.judiciary.uk/wp-content/uploads/2024/09/Guide-to-Family-Mediation-for-the-Courts-2024.pdf).

“Mediation works”, he said. As well as resolving 69 per cent of cases which did not, therefore, have to be decided by a court, “mediation can improve communication and future relationships”.

Yet even though the message about how effective NCDR is has registered loud and clear with the legal profession (Hall Brown actually has its own Head of Mediation, Sarah Manning), we have to remember the huge proportion of family court cases now involving people who represent themselves.

For example, Ministry of Justice data shows that 67.7 of applicants and respondents in private law cases during 2024 did not have a lawyer acting on their behalf.

I’m not sure if individuals representing themselves – referred to legally as ‘Litigants in Person’ – appreciate how relatively straightforward disagreements could be settled in weeks using NCDR instead of taking many months of court proceedings.

I should stress that my comments should not be regarded in any way as a criticism of those employed at family courts who work tirelessly to ensure that things run as smoothly as possible.

If we are searching for solutions to the situation identified by the National Audit Office and others, then bold thinking is required.

I feel that it would be useful to have a Legal Aid-funded triage system at the very start of the process for Litigants in Person, with solicitors examining their cases and advising of the most appropriate route to a settlement.

Such a set-up could have very positive benefits for judges, solicitors administrative staff, clients and, particularly, children by reducing the number of court applications made.

It is a fact that some participants almost believe judges can simply wave a magic wand and instantly help settle their cases.

An initial briefing to inform everyone of the realities of the family court system would, therefore, be of immense benefit.