The divorce statistics: legal representation

According to the latest family court statistics published in March 2023, private law cases with legal representation took, on average, longer to be concluded. The statistics show that in general, between October and December 2022, private law cases where either both parties or the respondent only had legal representation took longer to be disposed of than those cases where only the applicant was represented or where both parties were without legal representation.

What are private law cases?

Private law cases usually involve disputes between parents regarding the arrangements for their children following separation. Typically, private law proceedings relate to an application by one or both parents for a child arrangements order under Section 8 of the Children Act 1989 where the court will be asked to decide the following:

1. Who the child is to live with, spend time with, or otherwise have contact with; and

2. When the child is to live with, spend time with, or otherwise have contact with any other person.

As well as resolving child arrangement matters, private law proceedings can also cover applications for specific issue orders and prohibited steps orders concerning children.

A specific issue order is used to resolve a specific question about the child’s upbringing, such as whether their name should be changed, what school they should go to, whether they should have a particular religious upbringing, or whether they should receive certain medical treatment, for example.

A prohibited steps order is used to prevent a parent from making a decision about the child’s upbringing and effectively prevents them from exercising their parental responsibility. Examples include preventing a child from being removed from school and preventing a child from being removed from the country, whether on holiday or as part of a permanent relocation abroad.

How are private law cases different to public law cases?

Private law cases differ significantly from public law cases. Rather than resolving a dispute between separated parents, public law cases involve applications made by a local authority for a court order to safeguard the welfare of a child. Public law proceedings occur when the local authority has decided that a child is no longer safe with the person with whom they live. They are often referred to as “care proceedings”.

Why are private law cases taking longer to be resolved?

In April 2013, legal aid (otherwise known as “public funding”) was removed from many private law proceedings. This has resulted in a change in the pattern of legal representation, as those parties without the financial means to pay for legal assistance have been faced with the difficult decision of representing themselves in court.

The statistics show that from October to December 2022, 40% of concluded private law cases involved proceedings where neither party had legal representation. This is a 27% increase from January to March 2013. This may be one of the reasons why private law cases are taking longer to be resolved.

Inherent delays in the family court system, which have arguably worsened since the COVID-19 pandemic of 2020, are also a major cause for concern. The family court system is in crisis, and as family lawyers representing clients in these types of proceedings, we are witnessing first-hand, all too often, how private law cases take many months, often more than a year, to be concluded.

Due to a lack of judicial availability, the court frequently cancels hearings with little notice (sometimes even the day of the hearing itself), and there are lengthy gaps between each hearing.

This is having a significant impact on the children and families involved in these proceedings, as their cases are not being resolved quickly. This goes against one of the main considerations the court must take into account when it is tasked with considering a private law children application, namely that any delay in resolving children proceedings should be avoided as delay is likely to prejudice the welfare of the child.

What potential issues can having legal representation resolve?

It is against this background that we must emphasise the importance and benefit of obtaining expert family law advice and representation if you are considering making an application in relation to your child following a relationship breakdown or if you have been notified by the other parent or their solicitor that an application may be made.

We can help you explore other options to see if these matters can be resolved another way, amicably, without the need to involve the court. This may, for example, include supporting you through an alternative dispute resolution process such as mediation, solicitor negotiation, or collaborative law. These alternative ways of resolving child arrangement matters will usually be much quicker and less stressful for all the family than going to court.

We accept that it is not always possible for all parents to resolve matters amicably. This may be due to the level of dispute between the parents, the severity of any allegations or concerns about the child’s welfare, or the approach of the parties.

If it becomes necessary to involve the court, then we recommend you seek legal advice as early as possible. This will ensure you have all the available support and resources to hand to help you through the court process, including in respect of drafting the required court documents, obtaining expert reports where appropriate, liaising with the court and other party or their solicitor, and representing you at hearings to ensure the case proceeds as smoothly as possible.

For more information about how we can help, our family solicitors all offer a free initial 15 minute telephone appointment to discuss your needs. I can be contacted on 01206 217378 or via email at shelley.cumbers@birkettlong.co.uk.