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Key takeaways:

• Family has historically been an insulated area of litigation, seeing around 1% growth in the years prior to COVID-19.
• As the pandemic struck, the Family courts were particularly successful at managing the switch to audio-visual technologies for court hearings, enabling cases to progress through lockdowns.
• As we emerge from the pandemic, the combination of cases getting through the courts and rising legal demand is creating enormous amounts of work for Family barristers.

Family litigation was already growing before COVID-19

��˾����ҹ���� recently published a special addition of the Gross Legal Product Index, working with the Bar Council, that shed light on the impact of COVID-19 on different areas of litigation.

Unlike other areas of the law, litigation has been uniquely impacted by the national lockdowns and social distancing rules, drastically reducing the number of trials that have been able to take place.

The litigation-specific model we developed highlighted Family as a particularly ‘insulated’ area of litigious work, seeing about 1% growth between 2017 and 2019. This was driven mainly by the amount of work progressing through the courts and the rising backlog of cases, while legal demand for Family work appeared to decline around 5% over that time.

This decline in demand was down to multiple factors, such as a 21% decline in adoption applications under the Adoption Act, and a 22% decline in petitions filed for judicial separation. This points towards a declining amount of litigious work in this area of law. For example, a growing proportion of marital-related cases have gone online and are not disputed.

Nevertheless, Family litigation was a particularly stable area of work in the years prior to COVID-19.

And then the pandemic struck…

The pressing need to keep Family courts going through COVID-19

The lockdown brought enormous disruption to the court system, most notably the civil and criminal courts. Family courts, on the other hand, managed to continue working as effectively as they could. In May and June 2020, 94% of family court hearings took place using audio-visual technologies rather than face-to-face.

Rachel Chan, Family Barrister at 42 Bedford Row, commented:

“In my experience, all those who work within the Family justice system have worked tremendously hard to ensure that it is ‘business as usual’ despite the extremely difficult circumstances we were all working under. Counsel and solicitors have bent over backwards to enable clients to participate effectively in proceedings, often providing them with the technology to enable them to do so.  There are still reports of clients feeling isolated by the remote process and many hearings are now being conducted in a hybrid format to enable some parties to attend Court in person.”

Nevertheless, whilst many family law cases are suitable for remote hearings, not all are. There was a significant drop in cases going through courts during the height of lockdown; -26% in Q2 2020 compared to the previous year.

Since then, the number of cases going through courts have continued to climb. By Q4 2020, Family courts were getting through 7% more cases compared to the same period in the previous year. However, the backlog has continued to increase at an even faster rate. Already growing prior to COVID-19 (20% between 2017 and 2019), during 2020 alone the backlog for Family courts grew by 31%.

Family litigation – what comes next?

Our deep dive into Family litigation in the recent GLP Index predicted we would continue to see a rise in work in 2021, given the amount of pent-up demand from 2020, and the particular success of the Family courts at continuing to progress through cases even while national lockdowns continued.

If anything, we underestimated that demand.

The social impact of COVID-19 has driven significant growth in work across different areas of Family law. For example, Children Act cases, while declining overall during 2020, had already begun to grow significantly by the end of the year.

The same pattern can be seen in other areas of Family work, including domestic violence and matrimonial dissolutions, all of which were beginning to climb by Q4 2020.

During a recent roundtable between law firms and barristers to discuss the findings of the GLP Index, attendees highlighted the enormous amount of work coming through Family litigation currently, with lots of court applications being issued.

The ability to get through so much work has been by the adoption of new technologies over the course of COVID-19. Ms Chan added:

“By Q4, family practitioners, the judiciary, professionals working within family work and court staff had all embedded good remote working practice. In particular, the flexibility of courts in their use of technology whilst the cloud video platform was still in early stages of development enabled hearings to still proceed, which meant the courts were dealing with less of a backlog than they otherwise might have been. By way of example, some High Court judges allowed the use of Zoom, other courts used BT MeetMe, Microsoft Teams and Skype for Business, which has not been possible in other areas, such as crime.”

Family barristers have been able to attend hearings remotely that would previously have taken place in different places, enabling them to do a lot more work. This has been hugely important to continuing the trajectory of progressing more cases through the courts, which should help to bring the rising backlog back under control.

The consensus among Family practitioners is that many of these changes are here to stay, even while some areas of work, such as contested hearings, may return to taking place in-person or in a hybrid format.

Nevertheless, those working in Family litigation have also highlighted the enormous personal cost to barristers and those in the Family justice system, who are working flat out with an inevitable cost to mental and physical well-being. While many changes are here to stay, it is vital to the Family Bar that a sustainable and healthy way of working can be found, for everyone’s benefit.

Key recommendations

The adoption of technology for remote hearings has had an enormous impact of Family work over the past year. Look at intelligent legal technologies to further increase efficiency and help manage the significant increase in workload.

For those working outside Family litigation, consider opportunities to broaden your work, or expand into faster-growing areas of litigation. Research tools can facilitate your diversification and fill in any gaps in your knowledge.