Weekly Family Law Update December 19, 2020

A backlog of cases, human rights and international law

Plan published to deal with backlog of cases

The Family Justice Board, which oversees the family justice system, has produced a statement summarising the priority actions it intends to pursue to deal with the backlog of family cases.

The Board says backlogs in private law cases (i.e. children cases not involving social services) have increased by 18% since before the start of the March lockdown, and HM Courts & Tribunals Service (‘HMCTS’) estimates that private law cases may not return to pre-Covid levels for another three years.

The Board says that HMCTS has already taken steps to deal with these issues, including recruiting approximately 900 additional support staff, and launching a programme of recruitment to increase judicial capacity.

Further to this, the Board says that immediate recovery priorities include “changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.”

Pressure on the court system will be reduced by such measures as encouraging more couples to resolve disputes out of court, for example via mediation, and by more hearings being dealt with by the court ‘on the papers’, without the parties having to attend court.

In the longer term, a revised system to deal with private law cases is planned, in which issues are identified at an early stage in cases, so that the appropriate resources are allotted to each case. Some courts will also utilise a ‘problem-solving’ approach to the resolution of cases, in which the court looks at ways of resolving problems faced by separating families, such as drug and alcohol abuse.

Government launches independent review of the Human Rights Act

A panel of experts will examine whether there is a need to reform the Human Rights Act (‘HRA’), in an independent review launched by the government.

The review will be led by former Court of Appeal Judge, Sir Peter Gross, and will consider if the HRA needs updating after 2 decades of being in force.

Specifically, the review will consider:

  • The relationship between the domestic courts and the European Court of Human Rights (‘ECtHR’). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
  • The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
  • The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.

The Lord Chancellor, Robert Buckland QC MP, said:

“Human rights are deeply rooted in our constitution and the UK has a proud tradition of upholding and promoting them at home and abroad.

“After 20 years of operation, the time is right to consider whether the Human Rights Act is still working effectively.”

Private International Law Bill gains Royal Assent

The Private International Law Bill (2020) has received royal assent, allowing the UK to implement vital agreements which protect the country’s businesses and citizens across borders.

These agreements help to resolve a range of legal disputes – from returning children abducted by a parent, settling international business disagreements, to helping prevent a spouse living abroad dodging child maintenance obligations.

Lord Chancellor Robert Buckland said:

“These agreements provide vital protections to UK businesses, individuals and families looking to live, work, travel and trade across borders.

“We can now enjoy the freedom of being able to strike and implement our own Private International Law deals, ensuring they continue to have the interests of UK citizens at heart.”

Without the ability to implement these agreements in domestic law, there could be parallel court cases in different countries, leading to conflicting decisions where UK individuals, businesses and families would bear the brunt of legal costs.