Justice Delayed is Justice Denied

by Paul Read – London Office

Family law litigation is stressful. Family law court hearings can be very stressful. They can be “listed” or assigned a date to take place months in advance. The entire case will then be managed around that date. If a barrister is to be part of the team, they will only be chosen if they are available on the court date.

As the court date approaches, the intensity of the case increases. Statements must be drafted which necessarily require a client to subsume themselves in the detail of their family dispute. A barrister is often instructed and they must be briefed with all of the relevant documents. Ordinarily, once a barrister has received those documents they must be paid, regardless of whether the hearing goes ahead – or settles just before hand.

Witnesses must be given notice to attend court and bundles prepared for the court with the most up to date set of papers – often running to hundreds of pages of paginated documents. Position statements will be drafted which set out the client’s case in terms of the facts and the law. The emotional toll all of this takes on most client’s is considerable.

Imagine then, one week before a listed hearing is due to take place, with all of the above preparation done, an email is dispatched by the court informing the parties that the hearing will not be going ahead on the scheduled date but another date in the future which has not been decided upon yet. The reason being “lack of judicial availability.”

This has happened on more than once occasion to clients I represent and in one case, it happened twice to the same client. I was aghast.

The immediate issues this raises are many. What if there were urgent issues the court was due to determine? Should the client make a further urgent stand alone application? Is this likely to be listed (given a date) any quicker than the adjourned hearing? What about the barrister’s fee? They have prepared for the hearing and taken time out of their diary. But surly it cannot be right that a client pays for a barrister who has, in practical terms, done nothing for them? Will the witnesses be available for a hearing on a different date?

To be clear, there is no recourse back to the court. To use that oft used and slightly nihilistic phrase, “It is what it is.”

There are no easy answers to this but I do wonder why it is happening.

Upon reading the phrase, “Lack of judicial availability” in the modern climate, one immediately thinks of Covid. But I do not think that is the whole story. I think that government cuts in funding to the department of justice over many years have taken their toll on the civil and family court system to the point where it was breaking under it’s own weight long before Covid came along.

The Judges and staff of the Family Courts do an incredible job under immense pressures of work. I know from the court management of cases I deal with that judges of all levels have enormous workloads. There simply aren’t enough of them. Nor are there enough clerks, ushers and administrative staff who allow the justice system to function. The entire system has long been a precarious deck of cards with every person working to capacity and significantly, no surplus capacity. Covid, it seems, has turned a fan on that deck of cards and through no fault of the court staff and judges, people are suffering. People are being denied justice.

The system needs some form of emergency funding (Nightingale funding?). Our government must register this issue and act upon it. Now.

A warning. Family law is discretionary. It is essential that judges can reach a decision which is “fair” in “all the circumstances of the case”. It is probably the least appropriate area of law conceivable to employ Artificial Intelligence. However, Professor Richard Susskind, who chairs the Lord Chief Justice of England’s Advisory Group says (according to the BBC) that, “In the 1980s he was genuinely horrified by the idea of a computer judge, but that he isn’t now. He points out that even before Coronavirus, Brazil had a backlog of more than 100 million court cases, and that there is no chance of human judges and lawyers disposing of a case load of that size. So if an Artificial Intelligence system can very accurately (say with 95% probability) predict the outcome of a court decision, he says maybe we might start thinking about treating these predictions as binding determinations.”

We therefore have a senior advisor to the judiciary of England and Wales considering Artificial Intelligence as a possible solution to a backlog of court cases. Maybe that will come, but in the meantime the system simply needs proper funding.


Paradigm Family Law have a team of experienced lawyers to help guide you through the process of divorce, just waiting to hear from you.

If you would like more details on this or want to discuss your family law matter, please do not hesitate to contact James, Frank, Evelyn or Paul. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on +44 (0)20 3633 2301  or email us to [email protected].