It is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 "or even the spring of 2021", the President of the Family Division has said.
In ‘The Road Ahead' for the Family Court in England and Wales, published today (9 June), Sir Andrew McFarlane said this was on the basis that it seemed sensible to assume that social distancing restrictions would remain in place for many months.
The President said: “We must all take on board this significant change in perspective which will have an impact on every case management decision. Apparent potential unfairness which justified a case being adjourned for what was hoped to be a relatively short period of time, must now be re-evaluated against this much longer timescale.
“The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties.”
Sir Andrew said that, more positively, experience of remote hearings in the past two months had identified steps that could be taken to reduce the potential for unfairness, enabling cases to proceed fairly when previously they may have been adjourned.
The document reveals that, save for a dip in the first weeks of lockdown, the volume of applications being made to the Family Court in both private and public law children cases has continued at pre-COVID rates.
“Applications for domestic abuse injunctions have either remained at usual levels or have, in certain inner-city areas, significantly risen. It is anticipated that, once social services are able to function more normally and once more children come out of lockdown and return to school, the volume of child protection cases may surge,” he said.
The Family President noted that it was well known that, prior to COVID-19, the Family Court was already attempting to process an unprecedented level of applications relating to children.
“The reality to be faced is that the Family Court must now, for a sustained period, seek to achieve the fair, just and timely determination of a high-volume of cases with radically reduced resources in sub-optimal court settings,” he said.
In a section entitled ‘The Child’s Journey Must Not Be Delayed’, Sir Andrew said: “In the early days of lockdown, it was understandable and acceptable for cases to be adjourned for a short period in the hope that a more normal court process could then be undertaken. A short adjournment to meet the needs for fairness and due process might not unduly compromise the need to achieve a final outcome for the child.
“Now that we are facing many more months of straitened resources it is likely that nettles will need to be grasped for the sake of the child’s welfare, with final hearings fixed for remote or hybrid determination, and with steps taken to maximise the fairness of the process.”
He added: “Whilst a court is not required to hold the child’s welfare as the paramount consideration when making case management decisions, the child’s welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases. Making a timely decision as to the child’s further care is in essence what each case is about. The child’s welfare should be in the forefront of the court’s mind throughout the process.”
The Family President said the Family Court would now be moving from working almost totally via remote hearings to a situation where at least some, and increasingly more, hearings will be either fully attended by all parties or ‘hybrid’ (where some of the parties attend and the remainder engage with the court process remotely).
“This change in working practice will develop over time and is very much work in progress. It will in part depend upon the availability of a COVID-safe working environment in courtrooms and court buildings. Such resources will be in short supply and may fall to be shared with the criminal, civil and tribunal jurisdictions,” he said.
“Even if attendance at court increases, it is plain that a good deal of the day to day work of the court will still have to continue to be undertaken remotely during the coming months.”
The President said the overwhelming view of the judiciary and legal profession was that the Family Court did not need any further directive or proscriptive guidance on case management at this time.
“It is thought that the President’s Guidance issued on 19 March, coupled with the joint letter from the three Heads of Jurisdiction on 9 April and subsequent clarification through the appeal process and otherwise has achieved a workable and settled understanding that allows each judge, magistrate or legal adviser the discretion to make bespoke case management decisions on a case by case basis. I agree with this overwhelming view.”
Sir Andrew said the only change to the previous guidance that was now necessary was to revise sub-paragraph (g) in the Heads of Jurisdiction letter to judges dated 9 April which read:
“(g) In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
The President said this passage should now read:
“(g) In all other cases where the parents and/or lay witnesses etc are to be called, the case may not be suitable for a fully remote hearing. Consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing. Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child’s welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties.”
Sir Andrew said the document was intended to describe the framework within which the Family Court must operate for the foreseeable future.
“Its aim is to identify the basis priorities and ground rules and to offer a checklist for case management decision making,” he said.
“Given the potential for local resources to change and improve over time, this framework is intended to be supportive rather than restrictive so that the court system can be agile in reviewing how it undertakes its work as the road becomes clearer and the resources or options available may improve.”
The document goes on to cover:
- Practical Matters: Court buildings and courtrooms; remote platforms (including steer on their use); support for lay parties; the family judiciary (including lay justices) working in court or at home; lawyer and other professionals unable to come to court; ADR;
- Wellbeing and communication: “in the present circumstances there is an enhanced need to consider well-being”.
- The key message: time management – a significant change needed;
- Case management: including the COVID-19 case management checklist;
- Best practice: FJO Report Section 6;
- Conclusion: the ‘can do’ mentality.
On the issue of time management, Sir Andrew said: “If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing.
“Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.” [emphasis in the original]
On case management, the President said “clear, focussed and very robust” management of cases would be vital in the coming months.
He added: “Adjourning the case to await a full face-to-face hearing is unlikely to be an option. The court must identify those issues and applications that need to be heard and then move on to determine them.
“Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court.”
Sir Andrew said: “We have reached a juncture in the Family Court’s journey through the COVID 19 crisis when it is both possible and necessary to take stock and to consider the road ahead. It is possible to do this because, in contrast to the early weeks, there is now a bedrock of experience of remote working.
“This experience, both positive and negative, was in large part described and teased out in the enormously valuable and impressive report published by the Nuffield Family Justice Observatory on remote hearings in the Family Court in early May 2020
“It is necessary to look at the road ahead because any earlier rose-tinted thoughts that ‘this will all be over by July’ have sadly evaporated and it is now clear that, whilst the situation of total lockdown may be gradually relaxed, the need for stringent social distancing restrictions is likely to remain for many months to come.”