The Kingsley Napley Peer to Peer Debate 2021: "Two tier, or not two tier…"

1 December 2021

The motion: This House believes a two tier family justice system is inequitable, unjustified and immoral.

One effect of the Covid 19 pandemic has been the disruption and delay to the administration of family law justice.  For a system already creaking as a result of cut backs, the pandemic has highlighted the polarisation between those who can afford to pay privately for their justice - using arbitration and private judges - and those who cannot. In the latest of our annual debates on family justice on 29 November, the family team at Kingsley Napley asked whether the two tier justice system is here to stay.

The debate was chaired by Lady Justice King DBE and on the panel were:

  • Alexis Campbell QC of 29 Bedford Row;
  • Charles Hale QC of 4 PB;
  • Harry Oliver QC of 1 King’s Bench Walk; and
  • Simon Webster QC of 1 Hare Court.

Each QC had been told whether they were debating for or against the motion so not reporting on their personal views.

Private healthcare, private education and now private justice.  The commercial world is already well used to it, but for family disputes it is a fairly recent development.  A development that our speakers pointed out not only coincided with, but was most likely accelerated by, the decimation of legal aid in family cases by the LASPO reforms.

The development of private family justice has also undoubtedly been accelerated by the pandemic.  Online court hearings and electronic court bundles are here to stay.  But, unless there is a radical increase in government funding, then so are the existential problems facing the family justice system.

The buildings are crumbling, the delays are increasing, there is a shortage of Judges, and those Judges who remain are at breaking point. Over the years, the family court has seen a considerable increase in cases coming to court, and those cases are taking longer to resolve.  It is a perfect storm – a family justice crisis.

Our speakers agreed that private justice offers those who can afford it significant benefits: quicker, more efficient decision-making by a carefully chosen Judge, who has read everything, will give the case their full attention, and will not postpone at the last minute. The surroundings will be comfortable, private and more conducive to settlements being agreed.  When viewed on a hearing by hearing basis, the public court system simply cannot compete.

But our speakers were tasked with approaching the issue from a wider systemic view.  They were tasked with considering whether this two tier system, which they agreed already exists, is inequitable, unjustified and immoral.  Regardless of whether the private tier is excellent, should there be two tiers at all?

The first justification for private justice, from lawyers and Judges alike, is that it frees up judicial time for those cases which must be heard in court, those arguably more important cases such as public children proceedings, Court of Protection work and emergency hearings.  

But is this argument simply a “fig leaf”?  A balm to make lawyers feel better… In reality, how many court days are actually taken up by cases that could have been heard privately?

The statistics show an alarming 14% increase in family law court cases over the past year.  And while some of this increase can be attributed to the pandemic, there is still an upwards trend that cannot be ignored, particularly in respect of financial court applications which have increased by over 70%.

The recent report by the Farquhar Committee on the Financial Remedies Court recommended a pilot scheme to fast-track financial cases where the net assets do not exceed £250,000, with the threshold to be increased to £500,000 if successful, which would widen the net to cover half of contested financial cases. This certainly has the potential to ease the pressure on the system.

But should we be encouraging more radical thinking? Is the public court system the best forum for sorting out financial matters when couples separate? One speaker asked whether we should be taking notes from continental legal systems, such as France, that take a private, inquisitorial approach rather than a public, adversarial approach in the area of financial remedy proceedings.

Litigants here can no longer assume their family matters will be argued and determined privately and anonymously.  The call for transparency in the family courts is now deafening; a tipping point has been reached. In the future, litigants may risk court documents, and even supporting documents such as bank statements and tax returns, being provided to journalists, if current proposals are adopted by the new Transparency Implementation Group, which has been set up by the President of the Family Division, Sir Andrew McFarlane.

One speaker felt certain that the principal driver behind this is to deter those who can afford it from entering the public court system (“Beware – here be journalists”) and to force them into privately paying for their Judge and court room.  But why should the rich be able to buy privacy?  The quest for transparency in the family courts, although justifiable, is arguably further entrenching the two tier system.

Returning to the healthcare metaphor of a BUPA private style system, one of our speakers suggested that those wishing to work as private judges should be required to first train as an actual Judge, and then spend time working in real courts, either before being allowed to enter private judicial practice or alongside it, as a way of “giving back” to the system.  Or could private judges be required to dedicate time to training new Judges (like consultants in the NHS) for example?  While a worthy suggestion, how would all that work in practice and, crucially, how would it be funded?  Could private judges be forced to pay a fee for the privilege of dispensing private justice?  Or is the tax on their additional income already sufficient contribution back into the public purse?

Along with the loss of potential Judges, do we also risk privatising legal knowledge and precedent? One speaker focused on the consequences from the judiciary’s point of view – as more people “go private” there is a narrower scope of cases left in the court system so Judges will not get the same broad experience of family law. And, crucially, fewer reported cases will be available to help lawyers advising their clients in this highly discretionary area of law.  While arbitration has become business as usual in a commercial context, family law relies on broadly defined statutes with case law guiding our advice. How can family lawyers learn what outcomes to expect if judgments are given privately?  And, more importantly, how can separating couples (with or without lawyers) begin to understand what is a fair outcome if decisions are being made behind closed doors? If family arbitration is the future, then surely judgments in arbitrations will also need to be reported, albeit anonymously, to protect and promote the development of family case law.

Our society needs a functioning family court system. If two-tier justice is here to stay, we need to ensure the tiers do not diverge.  It is important that the lawyers dispensing private justice remain stakeholders in the system as a whole. Parity of training and accountability is crucial.  

As with so many issues though, funding is clearly the key to this debate.  But the government’s spending plans for the next four years simply will not scratch the surface.  Is it immoral to allow people to buy more efficient justice, leaving increasing space for those who have no alternative?  Or is it immoral to ignore the crumbling court system and sit on our principles?  There are families in need, across the country, who cannot afford to pay, and simply cannot afford to wait.  

Our final poll showed that 55% of our audience agreed that a two tier justice system was inequitable, unjustified and immoral.  However, over the course of the debate we saw a swing of 5% towards the other side of the motion (and 40% swing from our pre debate social media poll).  And, as our family justice system continues to disintegrate beneath the weight of social responsibility, without proper funding in sight, is a further swing inevitable?

FURTHER INFORMATION

If you have any questions about the issues raised in this or other blogs in this series, please contact a member of our family and divorce team

 

ABOUT THE AUTHOR

Lauren Evans is a senior associate in the family team with experience of all types of private family work relating to both children and finances.  Lauren is also a mediator and helps clients to work through the practical and legal issues arising from family relationship breakdown. 

 

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