Senior family judge warns against allocation of hearing time outside normal sitting hours of court save in exceptional circumstances

The allocation of additional hearing time outside the normal sitting hours of the Family Court - between 10.00am and 4.30pm, with an adequate adjournment at lunchtime - should be seen as an exceptional occurrence, and not the norm, and should be limited to no more than a 30-minute extension to the court day, the Family President has stressed.

In The Family Court and COVID 19: The Road Ahead 2021 Sir Andrew McFarlane also suggested, as part of renewed comments on the importance of wellbeing, that judges should question professionals who are seen to have been sending emails/messages outside acceptable hours.

In relation to sitting hours the Family President said: “The courts’ long-standing practice of not starting to hear cases before 10.00am and not sitting after 4.30pm, save to deal with urgent matters, arises from the need for the judges and staff to prepare for the listed hearings before they start and then to undertake the administrative tasks that have accumulated by the end of the day.

“In my experience most Family judges are at their desks well before 9.00am and continue working in the late afternoon and evening. For the professionals, the time before and after court is spent in preparation, drafting and discussion / negotiation.”

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According to Sir Andrew, widespread reports suggested that this time, on the margins of the day, was now regularly being taken up by additional hearings – some starting as early as 8.00am or commencing at 4.30pm.

“Having discussed this issue with the FDLJ’s [Family Division Liaison Judges] and others, I am clear that this development, laudable though the reasons behind it plainly are, is not tenable in terms of the human resources and well-being of all concerned. What is achievable in a sprint, is not sustainable in a marathon,” he said.

“It is, therefore, necessary for me to state that the normal sitting hours of the Family Court are between 10.00am and 4.30pm, with an adequate adjournment at lunchtime. Whilst a judge may decide that additional hearing time will be allocated outside these parameters, this should be seen as an exceptional occurrence, and not the norm, and should be limited to no more than a 30-minute extension to the court day. Cases which are genuinely urgent will, as they have always been, be allocated any necessary hearing time.(Substantive hearings listed in the dual-listing pilot scheme at Stoke on Trent are an exception to this requirement).”

Lord McFarlaneEarlier in The Road Ahead 2021, the Family President said that the degree to which work, including court hearings and the transmission of emails, now took place without any regard to the confines of a normal working day had become a matter of very significant concern in the context of individual and collective well-being.

“Prior to the advent of remote working, it was simply not possible to hold a court hearing before 9.00am because the court buildings were not open,” he noted.

“Neither was it possible to appear in one court for a case management hearing, before starting a full hearing in another court many miles away 45 minutes later. Now it is possible to achieve these and many similar additions to the working day via a computer; but just because we can, does not mean that it is right to do so.”

Sir Andrew said that the pressure of work in the courts, and the backlog of cases, would not be resolved by individuals working beyond reasonable capacity, but by increased resources and strategic, system-wide changes in the way cases were dealt with.

“Since March, the resources available to Family Justice have consistently increased in terms of equipment, staff numbers and judge sitting days. In addition, system-wide changes will now be introduced in Public Law children cases (following the launch of the Public Law Working Group report in February) to streamline the flow of work. These and other more detailed administrative strategies are being developed to help to address the caseload,” he said.

The Family President meanwhile said he was asking each Designated Family Judge to reinforce the need to adhere to the parameters set out in each DFJ area’s Well-being Protocol. Many of these protocols included expectations of when it was, and was not, acceptable to send/receive emails or to expect a response.

He added that he was grateful to Darren Howe QC, Liz Isaacs QC and the FLBA team for sending out a short guide on how to programme email software to delay sending messages between certain hours.

“Judges should question professionals who are seen to have been sending messages at times outside acceptable hours. There should be no expectation that email traffic will be read and responded to in the evening, overnight or at weekends,” the Family President said.

Elsewhere in The Road Ahead 2021, Sir Andrew said:

  • The message sent by the Lord Chief Justice on 5 January made it clear that the courts will continue to function during Lockdown 3, but that footfall in court buildings must be kept to a minimum. “The default position will be to facilitate the remote attendance of all or some of those involved in hearings.”
  • The need to maintain and enhance good practice with respect to the conduct of remote or hybrid hearings remained a priority for all professionals, court staff and judiciary in the Family Court over the coming months.
  • The guidance given in The Road Ahead published in June 2020 continued to apply, in particular its key message concerning time management.
  • The Road Ahead (June 2020) also stressed the need for the parties and courts to identify the welfare issues involved in a children’s case and then to deal with the case proportionately in terms of allotting an appropriate share of the court’s resources and to ensure that all parties are on an equal footing in the proceedings.
  • Practitioners should remind themselves of the Covid Case Management Checklist at paragraph 49 of The Road Ahead (June 2020).
  • Where a remote hearing is to take place, the default format should be video. Audio-only hearings should only be used where there is some pressing reason for not using a video platform. “Where video is used, but a lay party is joining only over an audio link, enhanced vigilance is required to ensure that the lay party is engaged with the court process. This approach applies both to children cases and to Financial Remedy cases, where all hearings are currently remote in any event.”
  • Hearings that are currently listed to be attended, either hybrid or fully, now require urgent review in the light of the Lord Chief Justice’s guidance on reverting to remote attendance unless some form of face-to-face attendance is necessary. For some of these hearings it may continue to be necessary for one or more participant to attend court. It is important for parties to be in communication with the court promptly on this issue. Ultimately the format of any hearing was a matter for the judge hearing the case and their approval would be required before any change to previously directed arrangements.
  • The new strain of Covid19 was much more easily transmitted and extra vigilance in ensuring that all precautions were followed was required. “Those attending court should expect that the court staff and the judiciary will insist upon strict compliance with these measures.”

The Family President finished by saying: “At the close of ‘The Road Ahead’, having observed that ‘the road is long’, I stretched the lyrical reference yet further with ‘we’ll get there’. At that time this was no more than an expression of imprecise hope. The arrival of vaccines that are already being deployed is plainly a game-changer. There is now a legitimate expectation that we will be able to move out of this restricted way of working by the summer. That is still some months off, hence the need to repeat and renew the basic guidance. I remain, however, profoundly confident that the ‘can do’ approach that has been the hallmark of the Family Court from Day One will continue and will see us through. As the Lord Chief Justice has said, our achievement to date has been ‘remarkable’. The light is now at the end of the tunnel; let us travel towards it safely.”

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