The President of the Family Division, Andrew McFarlane, has published a report which offers a roadmap for the day-to-day workings of the family court during the next six months, and also suggests that the system is unlikely to go “back to normal” before the spring of 2021.
The report, called “The Road Ahead”, confirms that case loads inside the courts remain high, posing a significant challenge to a system which is not fully operational, and which also faces considerable technological challenges.
McFarlane admits in the update that the measures suggested are “aspirational”, which could potentially confuse family courts and legal professionals who are still struggling to find a way forward.
These are the key messages from the report.
Signposts not Directions – with several guidance notes on case management already issued, McFarlane says no more rules are necessary, and that the Road Ahead is just a framework, designed to outline “basic priorities and ground rules and to offer a checklist for case management decision making.”
Courts versus Remote Hearings – while some courts are being opened up and additional spaces are being sought out, remote hearings are here to stay. Video hearings should be the number one choice (over telephone hearings) where possible.
Families and their Lay Advisors – remote hearings have often been fraught for vulnerable parents, extended family members and their McKenzie Friends, who are not always able to communicate with the judge or lawyers during the process. The report offers parties to proceedings the chance to attend a solicitor’s office, barrister’s chambers, room in a court building or a local authority facility, with their McKenzie friends or interpreters.
Public Law Cases – despite the high workload that existed before lockdown, and the family courts’ ongoing struggle to process all these cases within the elected time frame, the President says public law children cases are still expected to be completed within 26 weeks. The courts are expected to do this by limiting the length of hearings and only dealing with necessary issues. We can see “necessary issues” becoming a bone of contention in these proceedings.
Case Management – the handling of cases should be “clear, focussed and very robust”. Under this mantra, professionals will be expected to avoid adjourning cases so that they can be held face-to-face, which could cause problems for complex family law proceedings.
COVID Case Management Checklist and the “Can Do” Mentality – the report offers a guide on how to narrow the issues down in a case, hearing formats, and ensuring remote hearings are ‘as fair as possible’.
And all of these measures are impossibly underlined by the “overriding objective“, set out in the Family Procedure Rules, which requires courts and professionals to have regard to concepts like fairness and equality.
The family courts were in bad shape before it found itself at the steep end of a technological learning curve, and that journey has been tumultuous. How it will fare in the next six months is anyone’s guess.