Family Courts, Cuts and ‘Judge Rage’ 

Published on 06 November, 2019 | Emma Godefroy, Emma Dewhurst

Being a family solicitor can mean dealing with a wide range of themes and circumstances.

However, one thing is relatively common to all the cases with which myself and my colleagues at Hall Brown handle; namely, that attending a court hearing can be something of a daunting prospect for many individuals, regardless of age.

That’s why it’s important that all cases, especially those involving children, are handled with care and sensitivity.

It’s why one particular hearing has recently attracted attention for the wrong reasons.

According to a report in the Law Society Gazette (https://www.lawgazette.co.uk/law/district-judge-sarcastic-and-shaking-with-rage-in-flawed-family-hearing/5101963.article), a district judge has been upbraided by the Family Court for “wholly unsatisfactory” behaviour during one case dealing with care arrangements for a one-year-old child.

The judge was described as having shown “serious procedural irregularity” and even said to be “shaking with rage” during the hearing in March.

Her decision to make the child subject to a care order has now been overturned by the Family Court, which issued a reminder of the need for family proceedings to be fair, impartial and non-adversarial.

To a casual reader, the facts of the case may well be regarded as a matter of concern, although it’s worth remembering that they illustrate how the conduct and deliberations of judges are subject to review.

I believe that there is another possible dimension to the article, though.

Over the last six and a half years, the strain on the family courts has increased, due in no small part to the introduction in April 2013 of rules which abolished the provision of Legal Aid for all but a handful of private family law cases (https://www.lawsociety.org.uk/support-services/advice/articles/legal-aid-changes-key-information-and-advice/).

It has meant more individuals choosing to represent themselves (something known as ‘Litigants in Person’ in legal terminology) rather than retain the services of a trained lawyer with experience in such work.

That’s not a partial observation but something which has become obvious from a regular package of data published by the Ministry of Justice.

The last set of statistics, published at the end of September revealed that the number of cases between April and June this year  in which both parties did not have legal representation stood at 39 per cent – up 25 per cent on the final quarter before the Legal Aid changes took effect.

Both parties were represented by lawyers in only 18 per cent of cases, a figure which was 23 per cent down on the period stretching from January to April in 2013 and down one per cent on 2018 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/834048/FCSQ_April_to_June_2019.pdf).

The consequences of these developments have been mapped by politicians, academics and legal practitioners including the Bar Council, which published an in-depth analysis of the situation to coincide with Justice Week almost a year ago.

That paper suggested that adding the pressure of presenting in court to the trauma of relationship breakdown “is too much to ask of almost anyone” (https://www.barcouncil.org.uk/media/689348/family_justice.pdf).

It also identified how there was an effect too for judges who, in the absence of skilled lawyers, were “left to try and coax information from frightened, distressed and sometimes angry people in order to marshal the facts relevant to the decision that has to be made”.

Even when lawyers are there, we require the help and guidance of judges to come to a decision which is in the best interests of the parties involved, especially children.

In general and despite the increased pressure on the court system, things work well and examples such as that to which the Law Society Gazette has referred are relatively few and far between.

Improvements can, of course, still be made and, in May this year, the Government launched a project to ensure that family courts fulfill the objective of putting the well-being of children first (https://www.gov.uk/government/news/spotlight-on-child-protection-in-family-courts).

As lawyers, we strive to do our best to make sure that clients receive a fair hearing. It is part of the duty of care which we have to them, no matter how challenging the position they may find themselves in.