‘Interesting Times’

The Speech of Sir Andrew McFarlane President of the Family Division

FLBA National Conference: Manchester 16th October 2021

This is a post by Sarah Phillimore.

It is of course an ancient Chinese curse ‘may you live in interesting times’ and thus an intriguing title for this address, which you can read in full here. I propose to consider some selected highlights of what our President sees for the future of the Family Justice System.

First the President sets out what he wants to achieve over the remaining few years of his term. The following items will always be on his ‘to do list’.

  • Delivering the implementation of the long-running Digital Reform Programme for Civil, Family and Tribunals
  • Ensure everyone abides by the recommendations of the Public Law Working Groups.
  • Move the Family Court out of its silo and work effectively with other jurisdictions.
  • Protect and enhance the well being of everyone involved in the delivery of family justice.

Two topics however will demand additional time, focus and resources

  • resolution of private law disputes between parents about caring for their children post separation – this was covered in a previous Key Note address ‘Supporting Families in Conflict: There is a better way’
  • Transparency – the processes by which the Family Court may be made more open so that the wider public may gain a greater understanding of the work done here. I have undergone a sea change in my own approach to transparency – from actively campaigning for more openness, to now grave concerns about many journalists and parents will seek to use information made publicly available. The President will shortly publish the conclusions of the ‘‘Transparency Review’ that has been undertaken during the past year. Unfortunately this delay in publication meant the President felt it would be premature to consider it now.

Therefore the President turned to consider other matters.

The Future of Remote Hearings.

No national guidance will be issued but each local court centre will be trusted to exercise their discretion on a case by case basis and within broad parameters. The President made some comment about these parameters. It is clear that we will not return to the working practices of February 2020. The courts have now become used to remote working and it should be the formal of choice in appropriate hearings. The central theme is that parties and their lawyers should normally be physically present when an important decision is being taken. A clear negative about remote hearings is the absence of that time ‘at the door of the court’ to focus on issues and possibly settlement. But its clear that remote hearings – ‘for the right case’ – are here to stay.

Well Being

The system is currently running ‘hot’ and at a level above its normal capacity. The backlog of work remains high and is increasing. The President is clear that this level of working is not sustainable in the long run. Judges also need downtime and sympathy for late filing of position statements etc is going to be in short supply. He is concerned that orders are now taking days to draft after hearings and containing an over abundance of recitals – a new and ‘unwelcome’ development. Hopefully a Practice Direction will be issued early next year.

Public Law

The recommendations contained in the main report of the Public Law Working Group under the chairmanship of Mr Justice Keehan were launched in April 2021 with the firm expectation that they should be taken up by every local authority in England and Wales by now. The aim is to ensure that cases only come to court when they need to do so and when they are ready to do so in terms of assessments and all other necessary evidence. The big question of whether there is a case for the abolition, or replacement, of supervision orders has been referred to the Law Commission. The sub-group’s deliberations are focussed upon making supervision orders more robust and effective. A final report on this topic, which is expected by April 2022, will include draft Best Practice Guidance. Another sub-group on Adoption has started work with a final report expected later in 2022.

Family Public Law digital programme

The FPL digital programme is now fully operational in 10 of the 43 care centres. Between 10 and 12 further centres will become fully operational next week and it is envisaged that all other centres will join them before the end of the year. Taking up and implementing a substantial new software programme has not been without difficulties, which have been made no easier by doing so during the pandemic when all involved are working beyond their ordinary capacity.

Reform Programme

Looking at the Reform programme more generally, five reformed digital services have now been fully delivered: – Divorce – Financial Remedy Consent – Financial Remedy Contested – Probate – Family Public Law. In addition some 60% of all private law applications are now made online. Over ½ million digital applications have now been made using these services and the level of performance has been transferred: 9 – Divorce now takes 20 weeks from start to finish – Financial remedy consents are dealt with in 3 weeks – C100 applications are going to gatekeeping teams within 2 days of receipt – The FPL provides fully digital files for the judiciary.

Conclusion

The President concluded with words of praise

May I conclude by saying what I have now said on very many occasions. The record of achievement of the Family Court from the very first day of the first Lockdown has been profoundly impressive. Every single individual, be they lawyers, court staff, social workers or judges and magistrates, did their utmost to keep the system going and available for those who turn to us for protection or the resolution of intractable disputes. What has been achieved makes me proud to be part of the Family justice system and one of your number.

It certainly looks as if great strides have been made to embrace new technology and move away from a paper based service which hopefully will not only increase efficiency and but reduce costs. I am certainly pleased that remote hearings are here to stay when it comes to the shorter more administrative hearings. The joys of leaving the house at 5.30am to attend a 20 minutes directions hearing in Plymouth certainly diminished over the years – if those days are gone, I am very glad.

But of most interest to me is what the President wasn’t able to speak about – the Transparency Review and what it will mean for not only how we work in the Family Courts, but how others will be able to discuss how we work. I wish I could say I was filled with delighted anticipation for the forthcoming Review and how it will usher in a new golden dawn of shared information and understanding. Sadly, events of the last few years – most notably the woefully imbalanced ‘Dispatches’ report that could apparently find not a single father to interview – have made me much more pessimistic.

But as ever, I am always happy to be proved wrong. It is clear to me that trust and confidence in the system will not come from simply improved ease of access and IT improvements, but rather that people can be helped to understand the nature of the work that is done and most importantly the inevitable limitations of any system of law to mend broken relationships and emotional dysfunction.

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