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The Road Ahead – Sir Andrew MacFarlane, the President of the Family Division

The Road Ahead” is a comprehensive document that was issued by Sir Andrew MacFarlane, President of the Family Division on the 9th June 2020.

The aim of the document is to offer some guidance to practitioners and court users on the way in which family cases should be dealt with in these unprecedented times. Prior to the pandemic, remote hearings in the family court were rare. Whilst they featured heavily in the civil arena they had never found favour when it came to family hearings.

The Road Ahead” is a comprehensive document that was issued by Sir Andrew MacFarlane, President of the Family Division on the 9th June 2020.

The aim of the document is to offer some guidance to practitioners and court users on the way in which family cases should be dealt with in these unprecedented times. Prior to the pandemic, remote hearings in the family court were rare. Whilst they featured heavily in the civil arena they had never found favour when it came to family hearings.

Sir Andrew is clear that the Road Ahead is a broad framework for the Family Court. It is not finite and the individual factors and characteristics of each individual case should continue to be considered when making any decisions as to the way forward.

In looking at the direction of travel, his message is clear: the Road is long; the Traffic is high and the Child’s Journey must not be delayed.

Whilst many thought that by July court business would resume as before, the guidance makes clear that anything approaching a return to the normal court working environment is unlikely to be achieved before the end of 2020 or even possibly spring 2021.

Prior to the covid-19 crisis, the Family Court were attempting to process an unprecedented level of applications relating to children. At the outset of the outbreak, the majority of contested fact-finding or final welfare hearings were adjourned in the hope that normal working would resume shortly. There may have been  the expectation that along with it, less applications would be made. That hasn’t been the case and the number of applications being made to the Family Court in both public and private law cases have continued at pre-covid rates. The President is clear that the reality is that for a sustained period of time the Family Court must seek to achieve the fair, just and timely determination of a high volume of cases with radically reduced resources in sub-optimal court settings.

Any delay in decision-making is likely to prejudice the welfare of a child who is the subject of court proceedings. The time has come whereby some difficult decisions may need to be made or as Sir Andrew puts it “the nettles will need to be grasped for the sake of the child’s welfare”. As such, remote final hearings and hybrid hearings are likely to be much more common place.

It is acknowledged that the new way of working is very much dependent on the abilities of other agencies to deliver resources or to work in new ways and in order to deliver family justice there will need to be continued co-operation between each party and the importance of collaborative working both nationally and locally cannot be overstated. The Family Court will now be transitioning from working almost totally via remote hearings to a situation whereby there will be an increase in hybrid hearings or fully attended hearings.

The overwhelming view of the judiciary and the legal profession is that the Family Court does not need any further directive or prescriptive guidance on case management at this time and this is a view that the President shares.

By July the full family estate should be open for public use once again. HMCTS have worked hard to develop and implement a risk assessment which has permitted the identification of a number of courtrooms that are suitable for socially distanced hearings.

There are various technical options that are available to facilitate a remote hearing. Whilst Zoom cannot currently be supported by the Judiciary and HMCTS, the Cloud video platform is favoured and provided by HMCTS. Many Judges also have access to and have conducted hearings using Microsoft Teams.

In terms of technology the President offers a very firm steer as follows:-

  • In terms of remoteness, a remote hearing over the telephone is the most remote option other than a paper or email based process;
  • Telephone hearings may be suited to case management hearings but are unlikely to be suited to hearings where evidence is to be given or where the hearing is otherwise of substance;
  • When available video rather than telephone should be used for the conduct of a remote hearing;
  • It is not a good use of the judge’s time for the judge to be responsible for dialling in each participant;
  • BT Meet Me Dolby Plug-in is preferable to the basic BT Meet Me Service;
  • CVP is more effective than Skype and should be used where it is available;

Courts should endeavour to inform the parties which remote platform is to be used 3 days prior to a hearing. When arranging a remote hearing, thought should be given to arranging for a lay party to engage with the remote process from a location other than their home where they can be supported by at least one member of their legal team. Consideration will need to be given to the fact that the use of an interpreter will increase the length of any hearing.

Up until now, most Family Judges have worked from home. From the 4th June 2020, the Lord Chief Justice said that it is proving to be more efficient for judges to work from a court building, even when hearing cases remotely. It is therefore expected that many Judges who have been based at home will now return to working in a court building.

HMCTS have worked closely with professional bodies representing solicitors and barristers and those professionals who are not in recognised vulnerable groups will be expected to attend at Court where required. Those professionals who are expected to shield or are in another vulnerable group can expect the judiciary to be sympathetic to their circumstances, however, unless the interests of the child, fairness and justice can be met in another way the hearing should proceed in their absence.

At a time when it is clear that the Court is going to struggle to cope with the volume of cases, the parties should have regard to all non-court dispute resolution. All judges and practitioners should familiarise themselves with the options and identify those cases which may be suitable for one or another form of ADR.

The President opines that in order to provide the necessary assistance to everybody there will need to be a drastic 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.

Clear, focussed and robust management of cases will be vital and the case management judge will need to balance the welfare of the child, the need for a fair and just process, the limited resources of space, time and format along with the need to conclude the proceedings.

Adjourning the case to await a full face to face hearing is unlikely to be an option. The Court must identify those issues that need to be heard and then determine them.

An oral hearing will only encompass that which is necessary to determine the application before the Court; parties will not be allowed to litigate every issue and present extensive oral evidence.

The overriding objective as set out in the Family Procedure Rules 2010 r 1.1 should be kept in mind and particular emphasis should be afforded to identifying the welfare issues involved, dealing with a case proportionately in terms of allotting to it an appropriate share of the Court’s resources and ensuring an equal footing between the parties.  In keeping with the overriding objective, judges should consider whether giving a short judgment will be sufficient and proportionate in any particular case.

The task ahead for the Family Court in the coming months is a daunting one. Much to everyone’s credit in the family profession however, a “can do” mentality has been evident throughout the current crisis and the President is confident that this approach will continue to be seen.

Naomi Madderson & Kylie Peach
Crown Chambers

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