Family law

Some good news for family court delays

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Walker Family Law
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Lauren Preedy – Head of our Divorce and relationship Team

Some good news for family court delays

Last week the President of the Family Division Sir Andrew McFarlane spoke at a conference on the future of family practice online, organised by Resolution, the association of family lawyers. He had some interesting, and perhaps somewhat unexpected, things to say.

When the Covid-19 lockdown was imposed in March many court hearings were of course cancelled, due to social distancing rules. Obviously, this created a backlog of cases, in addition to the existing backlog and delays.

Since March the family courts have been operating primarily remotely, whereby participants in court hearings have taken part at home, via online links.

It might be expected that the backlog will not have improved over the last six months. However, this is not necessarily the case, according to the President.


“Can-do mentality” remote working lawyer

In the course of his speech Sir Andrew praised the lengths family practitioners went to in order to ensure hearings continued throughout the lockdown, although he acknowledged that this came at a price.

“From day one there has been a can-do mentality”, he told delegates. “Family lawyers can hold their heads high looking back at what we have achieved over the past six months.”

In fact, he explained, the family court system has adapted so well to remote working that some courts do not have a backlog of cases. Describing the development as “surprising”, he said:

“We’re in a position now where some of the courts haven’t got a backlog of cases. Others have but they’ve got a plan for dealing with them, and people are just cracking on and getting through the work.

“We are sitting and have sat more days in family than ever before despite the fact we haven’t had courtrooms.”

This is indeed rather surprising, but still very welcome news. However, Sir Andrew pointed out that the achievement has not come without a price. “Everyone is fatigued.” He said. “It’s one thing to get through the first peak of Covid…but to then turn the corner to find out there is another six months to go is very dispiriting and demoralising. One [judge] recently described it to me as remorseless. That’s how it must feel for everyone right now.”

Sir Andrew said that it is stressful working remotely, more tiring than when undertaking cases in the ordinary way, and that: “To face engaging in this way for another six months, it saps your morale, particularly if you are already knackered by what you have given so far.”


A remote future?child surfing on beach

Given the success of remote hearings, one might expect that Sir Andrew would be reluctant to return to court-based hearings once the pandemic is over. However, this is not so.

He said that whilst the ability to work digitally had been “accelerated by years” in some respects, he was clear that he would “fight any suggestion” by policy makers that family cases should remain online post-pandemic.

He acknowledged that some of the work can be done digitally, and case management and directions hearings could continue to be heard remotely. However, he said, “any hearing that involves the family engaging directly with the judge or magistrate, we must get back to having those hearings face to face in the courtroom as soon as we can”.

Remote hearings have been a useful expedient in this crisis, but it is generally acknowledged that they are no substitute for face to face hearings, especially in family cases.

In April the Nuffield Family Justice Observatory, which monitors the performance of the family justice system, carried out a ‘rapid consultation’ on the impact of remote hearings. Many of the respondents to the consultation (judges and lawyers) expressed a concern about the difficulties of reading body language where there is no face-to-face contact with parties, and noted that it is extremely difficult to conduct the hearings with the level of empathy and humanity that a majority of those responding thought was an essential element of the family justice system.

There will no doubt be many more remote hearings in future than there were before the pandemic, but most hearings will be in court, at least if the President gets his way.