Court Delays? Go Private!

/in , /by

Court delays seem to have become worse in recent years with it taking longer than ever for hearings to be scheduled. There’s then the issue of contacting the Court which is almost impossible by phone and by email they will only accept certain documents. With the current coronavirus pandemic things have only got worse as this BBC article shows. An example of this is a case that I was recently dealing with that was cancelled by the Court with less than 24 hours notice. This was bad enough, but then the new date for the hearing was 4 months away! Therefore rather than my client resolving matters in Summer, she was now looking at Christmas before things will be concluded.

When the case eventually gets to Court things unfortunately do not get any better. The buildings for the most part are completely unsatisfactory with there being insufficient waiting rooms and generally they are too cold in Winter and too hot in Summer.

This is of course not the fault of the Court as they are working with what they have and due to budget cuts they have less staff and less money to spend on IT and buildings etc. However, it is understandably very frustrating for clients who are spending thousands of pounds on legal fees to have to endure such delays, poor communication from the Court and substandard facilities.

However, there is another way. Arbitration.

The traditional view of arbitration is perhaps of cases involving international businesses trying to resolve a high value dispute. However, arbitration is no longer just for commercial parties with very deep pockets; it’s now available for divorcing couples trying to resolve financial matters as an alternative to going through Court.

Rather than making an application to Court, waiting 6 months for the 1st hearing then another 4 months for the next hearing and having a different judge each time, with arbitration the situation is very different. The parties decide who the arbitrator should be (usually a practicing barrister or retired judge), when financial disclosure should happen, when the hearings should take place and where – usually at a nice hotel/conference centre with good facilities. This means that it is possible to have a hearing very quickly and to have the same arbitrator at each hearing meaning the case is dealt with promptly and consistently.

There is of course a downside to this and that is cost. As usual, to have something bespoke where you pick the judge (arbitrator), date and venue this is going to come at a cost. However, with arbitration it is possible to have a case dealt with in a fraction of the time of a case going through the Courts. This brings its own savings in terms of potentially lower legal costs as parties are only instructing solicitors for a matter of months as opposed to perhaps over a year if going through Court. There is also the fact that rather than having to think about your case for perhaps well over a year, with arbitration it could be finalised in months allowing you to move on with your life quicker.

Therefore whilst arbitration was once the preserve of the wealthy, given the ever increasing delays at Court which have only been made worse by coronavirus, arbitration may well now make financial sense for most financial remedy cases.

Arbitration can also be used in Children cases and this is a useful article on the subject.

For more information, or if you have any Family Law questions, please contact Nick Robertshaw from our Family Law department on 01733 262182 or bretton@wngsolicitors.co.uk

Child Arrangement Orders & Coronavirus

/in , /by

When ‘lockdown’ came into effect the Courts were clear that parents who had Child Arrangement Orders (CAO) were expected to continue to comply with the terms. This meant that children of separated parents were still allowed to go between their father’s and mother’s homes to comply with the child custody arrangements of any Court Order.

However, the Courts were aware that some parents would be very concerned about their children moving between households when schools had been closed and everyone was told not to go out except for essential activities. As such, the Courts encouraged concerned parents to try and agree between themselves to vary their CAO such as from direct contact to FaceTime or to suspend them until lockdown ended.

There were of course going to be situations where one parent wanted the CAO to continue, but the other parent did not. In these circumstances the Courts issued the following guidance:

Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current PHE/PHW advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.

This therefore allowed sufficiently concerned parents to unilaterally suspend their CAO.

After an Easing of Lockdown

However, now that lockdown is being eased there is an argument that parents who still refuse to comply with the CAO may no longer be entitled to do so. Certainly, if the non-resident parent can show that they are taking reasonable safety precautions there would appear to be a strong argument that the previous child custody arrangements set out in the CAO should resume.

Suggested steps that should be taken if one parent will still not comply with the CAO post an easing of lockdown:

  1. The starting point would of course be to try and explain to the reluctant parent why the contact arrangements are now safe and what precautions you are taking.
  • If this does not work then Mediation may be a suitable way of negotiating an interim arrangement.
  • Should progress still not be possible then instructing a solicitor to provide you with specialist guidance may be appropriate. Often a letter from a solicitor explaining the situation to the other parent can be sufficient to resolve matters.

Ultimately if none of the above prove successful then an application to the Court to enforce the CAO may be necessary. However, we would strongly recommend that legal advice is taken before embarking on this step.

For further advice or assistance please contact us on 01733 262182 or bretton@wngsolicitors.co.uk