The Kingsley Napley Peer to Peer Debate 2021: "Two tier, or not two tier…"
Funding cuts, a shortage of judges, increasing demand and the pandemic have all contributed to the family courts bursting at the seams.
Concern grows that justice is not being delivered when trials are cancelled the day before, urgent hearings for children are listed many months in the future and there is insufficient time for judges to read crucial evidence on challenging issues.
Across the civil court spectrum in England and Wales, there has been greater emphasis on moving away from the judicial adjudication of cases and towards alternative ways to resolve disputes — in essence private justice. The Woolf reforms in 1999 dramatically changed the rules of litigation by introducing mechanisms for early dispute resolution and cost penalties for failure to negotiate. Seven years ago saw the introduction of arbitration into family law.
These developments, together with the inability of the family court to deliver an efficient and effective justice system, are leading to a two-tier justice system. Private justice is akin to the private education system and private medical care -— those who can afford it are able to gain access to the benefits; those who cannot are reliant on the public system with all its delays, faults and inadequacies.
The obvious advantage of a dual system is to free much needed court time for urgent cases. Lawyers working on complex and horrendous litigation involving children know only too well of the grave implications if adequate and prompt judicial time is unavailable.
Private justice is immoral, inequitable and unjustified, cry the critics; a two-tier system will create diverging family law: one for the poor and another for the rich. This is not justice, they add.
The consensus among family lawyers at a recent debate on this issue was that while private justice sparks concerns of fairness and morality, a two-tier justice system is now unavoidable; there is no going back. It is here to stay.
That does not mean that the government can ignore the funding crisis in the family courts — it urgently needs to address this issue. But what are the chances of a complete overhaul for legal aid?
Dominic Raab, the justice secretary, has called for intervention that is “drastic and bold”. Greater use of private justice in the family arena must surely be part of the solution.
This is not the time for questioning morality — this is a crisis and radical measures to prescribe in what circumstances private justice should apply is what the family justice system needs.
This article was originally published by the Times on 16 December 2021: Private justice in family courts is key (subscription required).
If you have any questions about the issues raised in this blog, please contact a member of our family and divorce team
Sital Fontenelle is a partner in Kingsley Napley’s family team, where she specialises in complex financial matters within a divorce, including international jurisdictional cases, negotiating and drafting prenuptial and postnuptial agreements as well as every aspect of private children law cases.
Sital’s areas of practice include all aspects of private family work, with particular expertise in financial remedy proceedings often involving an international dimension, with a particular expertise in advising families of an Indian background. Sital has extensive experience in complex cases involving off-shore trusts, family businesses, tracing assets and inherited wealth.
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