19th Jun 2020

On 9 June 2020, Sir Andrew McFarlane, President of the Family Division published “The Road Ahead”, a framework within which the Family Court will operate for the foreseeable future as it continues to adjust to ‘the new normal’ of remote working. It is a lengthy and important document for everyone working in the family justice system. Lisa Evans summarises the key features…

The President highlights the scale of disruption that Covid-19 has had on the Family Courts and notes that as a result of stringent social distancing requirements, this disruption is likely to continue for the remainder of the year. It has also become clear that there is a growing backlog of cases, which includes a considerable amount of pre-Covid workload, and that the ability of the courts to deal with this work is severely restricted by the ongoing need for most hearings to be conducted remotely.

Going forward, there will be a ‘very radical reduction in the amount of time that the court affords to each hearing’ and therefore clear, focused and robust case management is vital. The document provides a ‘Covid Case Management Checklist’ (at para 49) which emphasises the importance of the following:

  • Narrowing of the issues prior to any hearing;
  • Consideration of the hearing format and whether the issues can be determined justly at a fully remote hearing;
  • Active consideration of how best to optimise the fairness of remote hearings and how to enhance lay parties’ ability to engage in the hearing. This includes consideration of whether a party should attend from a location other than their home (such as a solicitor’s office or chambers) in order for them to have support available from a member of their legal team and any interpreter or intermediary that may be required.

It remains the position that video hearings are preferable to telephone, though telephone hearings may be suitable for shorter case management hearings. The two video platforms currently supported by the Courts are Skype and the Cloud Video Platform (“CVP”) which is favoured due to its increased functionality.

The framework is intended to compliment rather than replace all existing guidance which has been issued and any subsequent clarification by the courts. The only amendment is to sub-paragraph (g) of the Heads of Jurisdiction letter dated 9th April which should now read as follows:

“(g) in all other cases where the parents and/or lay witnesses etc are to be called, the case may not be suitable for a fully remote hearing. Consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing. Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child’s welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties.”

The President is clear that whilst short adjournments may have been acceptable at the advent of the crisis, we now face many more months of straitened resources. For this reason, those adjourned cases must now be reconsidered in light of a timescale that is much longer than originally anticipated.

In deciding which format a hearing should take, the welfare of the child, and the need to avoid delay, will be a vital, if not determinative, factor for the court. There is still a clear expectation that all public law cases should be completed within 26 weeks and as such adjourning cases indefinitely is not an option. As the President states, ‘the reality to be faced is that the Family Court must now, for a sustained period, seek to achieve the fair, just and timely determination of a high volume of cases with radically reduced resources in sub-optimal court settings.’

It is clear therefore that contested final hearings and fact-finding hearings should be listed for remote or hybrid determination, with the appropriate steps being taken to amplify the fairness for all parties.

The document was published just days after the Court of Appeal dealt with issues of remote advocacy and hybrid hearings in Re C (Children) (Covid-19: Representation) [2020] EWCA Civ 73. That appeal arose from a decision to continue a fact-finding hearing in circumstances where leading counsel for the mother could not be physically present in court due to her being required to shield from the Covid-19 infection.

Having considered the competing Article 6 and 8 rights of the parties, the court was clear that whilst short adjournments may sometimes be granted to secure the attendance of counsel, the proposed delay in this case was neither short nor certain. In dismissing the appeal, the court noted that the capacity for ‘immediate dynamic interaction’ is not an indispensable element of a fair hearing and that the hearing ought to continue with that counsel attending remotely.

What is evident from the President’s roadmap, in addition to Re C, is that the fallout from the current pandemic will have a lasting impact on the Family Courts for many months to come. The availability of courtrooms which will be appropriate for in-person, socially distanced, hearings will be in short supply and may fall to be shared with other jurisdictions. The challenge therefore facing the courts is to continue to achieve the fair, just and timely determination of a growing number of cases, despite severe restrictions on ordinary working.

Lisa Evans

19th June 2020

Lisa Evans is a pupil in the Family Department at 18 St John Street Chambers. She is in her second six months of pupillage and is available to accept instructions. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.