As has recently been reported in the Sunday Times, for an increasing number of couples who decide to divorce, private hearings have become the forum of choice.
They are pursuing this alternative option in order to avoid the delays and uncertainty that have become routine in the family courts.
Although the primary reason is the backlog of cases caused by the Covid-19 pandemic, the family courts were already overloaded pre-Covid - a situation that has been exacerbated by a series of protracted lockdowns, causing demand for private hearings to soar over the past year.
Private hearings fall outside the conventional family court system: the Family Division of the High Court, district judges in County Courts and Family Proceedings Courts. Instead, they use experienced family lawyers and retired judges who are paid to preside over hearings fixed to settled disputes (FDR hearings) during the “normal” procedure and to arbitrate matrimonial disputes over money and children.
Such hearings are generally brought in connection with divorce or the parents’ separation, but they can also include: parental responsibility; financial applications; special guardianship orders, which give a special guardian legal responsibility without removing that responsibility from the birth parents; and orders under s.8 of the Children Act 1989, to settle where a child lives, parental contact and responsibility and other specific disputes.
Orders can also be made over “prohibited steps” – for example, preventing a parent from moving a child to another country.
Using a private FDR hearing has been common for many years and is now a standard part of high net worth divorces. It has been feasible to choose a private arbitration in family cases since 2012, although the take-up has been slow.
But it is now gathering speed. Data published by the Institute of Family Law Arbitrators reveals that of all family law arbitrations that have been heard over the past nine years, almost 30 per cent have taken place since January last year: 127 out of a total 428.
Problems in the family court system originate from the fallout of the tragic case of Peter Connelly in 2007. Social services were heavily criticised for not taking early action in that case and it prompted a sea change in their processes – and there was a flood of cases that came to the courts. The family courts have to deal with a significant increase in such cases whilst also catering for divorces, financial matters and other children issues.
These problems were exacerbated by the austerity measures first put in place by the coalition government more than a decade ago. In 2010-11, the combined spending for criminal and civil legal aid was £2.57bn - a figure which precipitated a cost-saving review that was intended to reduce annual expenditure by £350m. But by 2017-18, the annual legal aid budget had fallen to £1.63bn - £940m lower than it had been in 2010-11.