Lord Brailsford is right to remind us that family law cases are taking too long and are too expensive.
The courts deciding family cases need to get to the point and make a decision.
The importance of getting the decision right can scarcely be overstated. There are vulnerable children and adults to protect. There are futures to be settled. There are livelihoods at stake. Botched decision making can scar individuals for life.
Good decisions in individual cases are important to the health of society as a whole.
Family law is, however, highly inconvenient. Family life does not stand still. Things happen. Children grow and develop. Crises loom. Financial circumstances change. Unless the court gets to the point quickly, a different decision may require to be made. In some cases time may be a healer. In many cases delay causes damage that cannot be repaired.
One of the most important decisions a court may take is “when” it is going to make a decision. What is the timeframe that will meet the requirements of the case? Hence the importance of Lord Brailsford’s new discipline in the Court of Session of looking at a case early in its existence, identifying the issues and setting a date for a decision to be taken, if parties have not sorted matters out for themselves.
One of the reasons it works is that parties will know that if they have not resolved the issues then the court will, barring some exceptional circumstances, get on and make a decision at the time set.
The court does not have to “manage” the process. The family law bar does that, and on the whole does it well.
The success of the Court of Session approach suggests that we should be cautious about introducing more procedure. The sheriff court positively bristles with procedure.
One of the lengthiest and most expensive sheriff court cases of recent years was subject to numerous case-management hearings. We already have a special sheriff court hearing for children’s cases, where the court is charged by the rules with seeking to secure the speedy resolution of disputes by finding out the issues dividing the parties. It doesn’t work.
Every court hearing costs money. If these hearings are not driving forward the case to a decision they should not be happening.
So what is the answer?
One important part of the solution is to have the right people involved. We have a cadre of dedicated and skilled family law practitioners.
Family law is no longer Cinderella, despised by “real” lawyers. It is increasingly seen as an area demanding a wide range of accomplishments, from an acute appreciation of the law, to skills in managing clients in difficult situations, combined with courtroom skills in communication.
Family lawyers are not stuck in Victorian practices. We are prepared to adapt, and learn new ways of dealing with matters. We mediate, collaborate and arbitrate as well as negotiating and, when unavoidable, litigating. Video links are welcome.
Greater use of information technology is already speeding cases along. We have adapted to presenting more evidence in written form.
We may be perplexed as to how a court could reach a judgment on a disputed issue on the basis of paper alone, but undefended cases and agreed cases are already dealt with administratively, and we have no difficulty with that.
Now we need skilled and dedicated decision makers to match the developments in family law and practice. And they need the resources to make decisions. They will need access to good technology. They will need time to consider written material.
They will need to set realistic dates for hearings with certainty that a case can proceed on the date allocated.
It is encouraging that the Lord President has selected Lord Brailsford to spearhead family law reform. If he can secure the necessary resources and then build on the best to redeem the worst then we can look forward to positive developments.
• Janys M Scott QC is the chair of the Advocates Family Law Association