The President of the Family Division has called for a redoubling of the focus on wellbeing, warning that “new-found technological facilities can easily go to increase the burden of work, and consequent stress, rather than reduce it”.
In his Autumn View from The President's Chambers, Sir Andrew McFarlane said: “The need to prioritise wellbeing in our individual and collective working lives was, I hope, firmly established before any of us had even heard of Covid 19. Each court centre should have a wellbeing protocol that has been discussed and agreed.
“Rather than seeing wellbeing as an optional extra that might be jettisoned when times get tough, it is, I would suggest, all the more important that each of us continues to afford it high priority.”
The President revealed that every Designated Family Judge to whom he had spoken had described a high level of fatigue amongst the judiciary and staff at their courts. The representatives of the professions, CAFCASS and social workers, had also spoken of a similar level of exhaustion across the board.
“Yet, as the system ramps up its capacity to list cases, the remorseless pressure from the volume of work is, if anything, increasing. I have heard that it is now not exceptional for lawyers to be emailing each other in the small hours of the night. I have heard more than one account of courts directing that skeleton arguments should be filed on a Saturday or Sunday,” Sir Andrew said.
“More generally, because we can now do so remotely, additional directions hearings are, I gather, sometimes listed remotely before the start of the court day in Court X in, say, the North of England, when the advocates may be part-heard in other trials in Courts Y or Z in the West or South. Hitherto, such listings would either not have taken place, or other lawyers would have covered them; now the same lawyer can do both and therefore has to prepare for and attend both hearings – and the judge accommodates them by sitting early before the start of their ordinary list.”
The President added that, “separately, but no less importantly”, there was a physical impact to sitting for hours in front of a screen without taking a break to stand up and walk around.
He said: “These and many other examples readily demonstrate how our new-found technological facilities can easily go to increase the burden of work, and consequent stress, rather than reduce it. It is also important to have in mind at all times that these pressures, as the recent Nuffield Family Justice Observatory report demonstrates, will also have an impact upon the lay parties who are before the court.” [President’s emphasis]
On redoubling the focus on wellbeing, the President urged each locality to revisit their agreed wellbeing protocol and use that as a basis for open discussion on the current ways of working and their impact on each individual’s physical and emotional health.
“It is plain that the system is at present running low in terms of the personal reserves of the human beings who work within it,” he said.
“There is currently no light at the end of the tunnel and the current news indicates that we may have many months ahead of us working as we now are. There is a need to continue to be kind and understanding of each other. It is crucial that you should all take stock of the issue of wellbeing, both individually and collectively, and, if one or more current work practice is unsustainable, then you should speak out and say so.”
In the Autumn View, the President also said each and every person involved in the delivery of Family Justice should feel very proud of all that had been achieved during the past seven months. “At the start of ‘Lockdown’ few of us had any experience of fully remote hearings, many had not heard of Teams or Zoom, most had sub-optimal kit to work with at home and no formal space to do so.”
He continued: “Against these undoubted challenges there was, across the board, an understanding of the need for the Family Court to continue to function away from its buildings and to do so immediately. From day one all involved displayed a palpable ‘can do’ approach to difficulties.”
Sir Andrew noted how remote working was often more tiring and stressful than taking part in a face-to-face hearing, and technical problems had been a regular source of frustration. “The increased volume of work in the system, including many urgent cases, has meant that the pressure on each individual has been unremitting, whether they are staff members, lawyers, social workers, CAFCASS officers, judges or magistrates.”
The President, who underwent surgery in June and was on sick leave in the interim, noted how more sitting days had taken place on Family cases this year than in any previous year, despite the Lockdown.
“This level of activity is entirely necessary as it is not possible to conduct as many cases each day as it is in normal circumstances,” he said. “In addition, a backlog has grown, partly from the cases that had to be adjourned during the early days and partly from an upturn in the number of private law and domestic abuse allegations that are now coming to the court.”
Sir Andrew highlighted how in September, CAFCASS recorded a 7% rise in public law applications and a 14% rise in private law applications compared to September 2019.
“Any pride and admiration for what has been achieved thus far cannot, therefore, justify complacency; there remains much to do over the coming months in circumstances which will continue to be a challenge to one and all,” he warned.
Sir Andrew meanwhile said that, rather than producing a revised version of the recent “must-read” report from the Nuffield Family Justice Observatory and repackaging it as ‘Presidential Guidance’, he proposed to endorse each of the NFJO’s recommendations and working with HMCTS commend the application of the advice in Chapter 8 of the report to all courts and court users.
He said he was particularly concerned at the accounts given of parents who were still joining important court hearings over a single phone link from their homes.
“It should now be possible for parents to engage more fully in the court process at every hearing when an important decision about their children may be made either by physically attending court (with or without their lawyers) or by joining remotely from a location where they can be with at least one of their legal team for support,” he suggested.
“Where a parent is joining remotely to an important hearing, this should be via a video platform rather than over the phone (and the parent should be using video on the video platform rather than linking in by phone). Unless the situation is truly urgent, and there is no option but to do so, a telephone connection should not be used for a parent, who is not with her/his lawyers, to join a remote hearing which may determine an important decision about their child.”
The President said that more generally, telephone hearings should only be used in a child case for short (case management or consent) hearings and should only be used for more substantial hearings if a face-to-face, hybrid or video hearing cannot be established.