There have been more court sitting days taking place on family cases this year than in any previous year, despite the lockdown, the president of the family courts division has said.

In his ‘View from the Chambers,’ Andrew McFarlane said this level of activity is necessary as it is not possible to conduct as many cases each day as it is in normal circumstances. 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. In September, CAFCASS recorded a 7% rise in public law applications and a 14% rise in private law applications compared to September 2019.

Sir McFarlane said it would have been possible to predict that the system would collapse or prove unable to meet the needs of those who turn to it for protection or the resolution of pressing personal disputes. But despite the challenges faced by the family court system, he said each and every person involved in the delivery of family justice should feel very proud of all that has been achieved during the past seven months.

Exhaustion

While every family judge has reported a high level of fatigue amongst the judiciary and staff at their courts and representatives of the professions, CAFCASS and social workers, speak of a similar level of exhaustion across the board, as the system ramps up its capacity to list cases, the remorseless pressure from the volume of work is, if anything, increasing.

The additional workloads on court staff reiterated the need to redouble the focus on wellbeing, he said, urging 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.

The president turned his attention to research by the Nuffield Family Justice Observatory on ‘Remote Hearings in the Family Justice System: September 2020’. While the overwhelming feedback from the professional and judicial responders was positive and reported a system running relatively smoothly, the responses from and about parents and relatives was “very largely negative and, in places, particularly worrying,” he said.

“Going further, however, I am particularly concerned at the accounts given of parents who are 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. 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),” said Sir McFarlane.

“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. 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,” he added.

Increased pressure

While it is difficult to remember pre-COVID-19, the Family Justice system was already facing unprecedented demand and there was common ground that we needed to develop strategies to cope with the increasing workload. Two working groups, on Public Law and Private Law, were established in 2018, and both had reached the final report stage of their work around the time that lockdown struck and therefore the reports were not published, as courts grappled with new ways of working.

However, now the family court has become more settled, the time is right to publish a distilled version of the recommendations of each of these two groups. The key point is that the guidance was developed to help to manage increased pressure and workload in the system.

The senior judge also highlighted that the ‘Family Solutions Group’, a sub-group of the Private Law working group, has been looking at the wider societal and cultural drivers that may lead parents to issue an application about the arrangements for their children. Although the statistics are not robust, it is now thought that about 40% of all separating parents bring issues about their children’s care to the Family Court for determination, rather than exercising parental responsibility and sorting the problems out themselves.

“If this figure is remotely accurate, it presents a startling and worrying picture. The number of private law applications continues to increase, which suggests that the trend is that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be in all cases where domestic abuse or child protection are not an issue,” he said. Concerted efforts have been made to achieve a major societal shift away from seeing issues about ordinary child care arrangements as involving ‘rights’ or requiring legal redress and the Family Solutions Group are to be commended for mounting a strong case for major change, he said.

Experts

Despite the obvious difficulties that remote working presents for the FDAC model, the FDAC courts have continued to function as effectively as possible and the number of courts increased.

Sir McFarlane also drew attention to the publication of the final report of the Experts Working Group which aimed at understanding and addressing the difficulty that the Family Court has in finding experts who are willing to accept instructions in family cases. There are a wide-range of reasons why an expert may feel disinclined to accept instructions – and while the rate of remuneration is one of the reasons, is not seen as the most significant one. The group has identified a series of modest, but important, changes that the courts, lawyers, Legal Aid Agency and the various Royal Colleges might make which are likely to have a disproportionately positive impact on the availability of experts.

“As the contents of this View demonstrate, both despite of and because of the restrictions under which we must all currently function, it is, to say the least, a busy time in the field of Family Justice,” he concluded, reiterating his call for wellbeing among staff to be prioritised.