On 8 January 2021 the President of the Family Division, Sir Andrew McFarlane, published his update on The Family Court and Covid 19, titled ‘The Road Ahead 2021’. The foreword sets out the President’s views on how Covid 19 continues to impact on the Family Court system and the plans for the future.
As we are all too aware, life did not return to ‘normal’ on 1 January 2021 and it is unlikely that it will for a number of months, so it is important for the Family Courts to continue to function through this and any future lockdowns. This new way of working is something that family lawyers have, on the whole, embraced and we expect that this new way of working will be around for some time. So, what exactly does the road ahead entail?
The President sets out some overarching themes in the document:
- The Road is Long
The President sets out that the most crucial change is the timescale before courts may return to ‘normal’. At the beginning of lockdown 1.0, many hearings were adjourned and it was hoped that this was only a temporary measure. It is now clear that going back to ‘normal’ will not be achieved in the immediate future.
Where possible, Judges and family lawyers will avoid adjourning cases unless necessary, as delays can lead to unfair trials and concerns about a child’s welfare, and families (in particular, children) need finality. Although family lawyers were very used to cases running over their optimal timescales, Covid 19 has increased those timescales significantly.
- The volume of cases
Despite a reduction in applications in the first few weeks of lockdown, the volume of applications being made to the Family Court is now back at the level it was prior to March 2020. Applications involving domestic abuse have increased. It is expected that there will also be a surge in child protection applications once children return to school.
The Family Court is therefore dealing with a high number of applications with a lack of resources and the vast majority of it remotely.
- A Child’s Journey
As previously mentioned, delay in decision making is likely to prejudice the welfare of a child subject to Court proceedings. At the beginning of the pandemic, it was considered cases may need to be adjourned for a short period of time in the interests of meeting the needs for fairness and due process. It was considered that this short delay would not unduly compromise the need to achieve a final outcome for the child.
For case management decisions, the court must keep the child’s welfare at the forefront of its mind. Avoiding delay and making a timely decision may be a determinative factor in decisions.
Particular emphasis is placed on identifying the welfare issues involved in a case, dealing with the case proportionately in terms of ‘allotting to it an appropriate share of the court’s resources’ and ensuring an ‘equal footing’ between parties.
- Work in progress
The President stresses that the ability to deliver the aspirational changes he highlights in this report is dependent on the workload, staffing and judicial resources, technology and (increasingly) the availability of courtrooms that are compatible with the strictures of social distancing. This depends on continued communication, cooperation and collaborative working between agencies.
- Signposts not directions
The views of family practitioners and the family courts expressed that there is now a workable and settled understanding that allows discretion to make decisions on a case-by-case basis.
The Courts may begin to focus more on hybrid hearings, where one or more of the parties attend court to give evidence and other parties attend remotely.
- Court hearings
Court hearings have largely moved to remote hearings since March 2020, with Judges, barristers, solicitors and clients alike all grappling with technology of video and telephone conference calls.
During June, Court buildings that have been ‘suspended’ or ‘staffed only’ are being reopened so that by early July the Family Courts should reopen once more.
A number of courtrooms are already open for socially distanced hearings. There is a limit on the number of people who can attend these hearings and rules which attendees are required to follow.
Remote platforms are available to use and different courts prefer to use different platforms, many currently opting to use Microsoft Teams. From 8 June 2020, the Cloud Video Platform will be rolled out across Family Court centres.
Telephone hearings may suit short case management or review hearings, but are unlikely to be suitable for any hearings where evidence is to be given or where the hearing is otherwise of substance. Where a video platform is available and viable, video rather than telephone should be used.
Judges have largely been working from home, like the rest of us, but have been advised that, where possible, they should start working from court buildings.
Family practitioners should be live to considering whether a case is suitable for alternative dispute resolution (ADR) such as mediation, arbitration or conciliation.
- Wellbeing and communication
In the present circumstances, there is an enhanced need to consider wellbeing. There are a number of initiatives that have been set up including virtual meetings to discuss common problems with the Courts and also to open up a useful channel of communication.
Rayden Solicitors continue to work remotely and assist clients in all aspects of their family law needs.