The Family Court and COVID 19:
The Road Ahead
1. We have reached a juncture in the Family Court’s journey through the COVID 19 crisis when it is both possible and necessary to take stock and to consider the road ahead. It is possible to do this because, in contrast to the early weeks, there is now a bedrock of experience of remote working. This experience, both positive and negative, was in large part described and teased out in the enormously valuable and impressive report published by the Nuffield Family Justice Observatory The Nuffield Family Justice Observatory on remote hearings in the Family Court in early May is necessary to look at the road ahead because any earlier rose-tinted thoughts that ‘this will all be over by July’ have sadly evaporated and it is now clear that, whilst the situation of total lockdown may be gradually relaxed, the need for stringent social distancing restrictions is likely to remain for many months to come.
2. In preparing this document, which seeks to establish a broad framework for the Family Court by attempting to chart the road ahead over the next six months or more, I have been greatly assisted by the NFJO Report, detailed feedback on that report from each Designated Family Judge [‘DFJ’] and Family Division Liaison Judge [‘FDLJ’], HMCTS, CAFCASS and CAFCASS Cymru, the FLBA, Resolution, the Law Society, the ALC and others. In addition I have been given invaluable support by Baker LJ and Judd J, who have led a small judicial group tasked with looking in detail at the ‘recovery’ period for the Family Court; their detailed internal report describing their own wide-ranging consultation brims with helpful insight and practical wisdom.
3. Before turning to matters of detail, I will deal with some of the overarching themes which underpin the framework described in this document.
The Road is Long
4. The most crucial change that must now be understood across the board by all involved in delivering Family Justice relates to the timescale before the court may return to full and ordinary operation.
5. In the early weeks of the COVID crisis most contested fact-finding or final welfare hearings were adjourned (unless they could proceed, for example, with minimal oral evidence). It was no doubt hoped by many that normal working would resume relatively soon and the delay in resolving the contested issues would not be great. It now seems sensible to assume that social distancing restrictions will remain in place for many months and that it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021.
6. We must all take on board this significant change in perspective which will have an impact on every case management decision. Apparent potential unfairness which justified a case being adjourned for what was hoped to be a relatively short period of time, must now be re-evaluated against this much longer timescale. The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties. More positively, experience of remote hearings in the past two months has identified steps that can be taken to reduce the potential for unfairness (a number are listed at paragraph 49 below and more are set out at paragraph 5.19 of MacDonald J’s Guide to the Remote Family Court, enabling cases to proceed fairly when previously they may have been adjourned.
The Volume of Traffic is High
7. Save for a dip in the first weeks of lockdown, the volume of applications being made to the Family Court in both private and public law children cases has continued at pre-COVID rates. Applications for domestic abuse injunctions have either remained at usual levels or have, in certain inner-city areas, significantly risen. It is anticipated that, once social services are able to function more normally and once more children come out of lockdown and return to school, the volume of child protection cases may surge.
8. It is well known that, prior to COVID 19, the Family Court was already attempting to process an unprecedented level of applications relating to children. President’s Private Law Working Group Report: and President’s Public Law Working Group Report
9. 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.
The Child’s Journey Must Not be Delayed
10. It is part of the DNA of all professionals working in Family Justice and embodied prominently in statute that delay in decision making is likely to prejudice the welfare of a child who is subject of court proceedings [CA 1989, s 1(2) and ACA 2002, s 1(3)]. There is a statutory requirement for public law cases to be completed in 26 weeks [CA 1989, s 32(1)].
11. In the early days of lockdown, it was understandable and acceptable for cases to be adjourned for a short period in the hope that a more normal court process could then be undertaken. A short adjournment to meet the needs for fairness and due process might not unduly compromise the need to achieve a final outcome for the child. Now that we are facing many more months of straitened resources it is likely that nettles will need to be grasped for the sake of the child’s welfare, with final hearings fixed for remote or hybrid determination, and with steps taken to maximise the fairness of the process.
12. Whilst a court is not required to hold the child’s welfare as the paramount consideration when making case management decisions, the child’s welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases. Making a timely decision as to the child’s further care is in essence what each case is about. The child’s welfare should be in the forefront of the court’s mind throughout the process.
The Road Ahead: Work in Progress
13. The fourth theme to stress is that, inevitably, much of what is described here in terms of future working is aspirational, untried and is likely to depend upon the ability of a range of agencies and professionals to deliver resources or to work in ways which will be new. In line with the experience of the past 10 weeks, different courts, judges and professionals will be more, or less, able to deliver change as a result of a range of factors including work-load, staffing and judicial resources, technology and (increasingly) the availability of courtrooms that are compatible with the strictures of social distancing. As has been the case during the past three months, much will depend upon continued communication and cooperation between each agency involved in the delivery of family justice; the importance of collaborative working, both locally and nationally, cannot be overstated.
14. The Family Court will now be moving from working almost totally via remote hearings to a situation where at least some, and increasingly more, hearings will be either fully attended by all parties or ‘hybrid’ (where some of the parties attend and the remainder engage with the court process remotely). This change in working practice will develop over time and is very much work in progress. It will in part depend upon the availability of a COVID-safe working environment in courtrooms and court buildings. Such resources will be in short supply and may fall to be shared with the criminal, civil and tribunal jurisdictions.
15. Even if attendance at court increases, it is plain that a good deal of the day to day work of the court will still have to continue to be undertaken remotely during the coming months.
The Road Ahead: Signposts not Directions
16. The overwhelming view of the judiciary and legal profession is that the Family Court does not need any further directive or proscriptive guidance on case management at this time. It is thought that the President’s Guidance issued on 19 March, coupled with the joint letter from the three Heads of Jurisdiction on 9 April and subsequent clarification through the appeal process and otherwise has achieved a workable and settled understanding that allows each judge, magistrate or legal adviser the discretion to make bespoke case management decisions on a case by case basis. I agree with this overwhelming view. Further, given that the court’s capacity to undertake a greater proportion of work via fully attended or hybrid hearings will undoubtedly change and develop differently in each court-centre and over time, it does not seem possible to contemplate directive guidance that would help rather than hinder that process.
17. The only change to the previous guidance that is now necessary is to revise subparagraph (g) in the Heads of Jurisdiction letter to judges dated 9 April which read:
“(g) In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
This passage should now read:
“(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. 5 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.”
18. Save for the change to previous guidance set out in paragraph 17, this document intends to describe the framework within which the Family Court must operate for the foreseeable future. Its aim is to identify the basic priorities and ground rules and to offer a checklist for case management decision making. Given the potential for local resources to change and improve over time, this framework is intended to be supportive rather than restrictive so that the court system can be agile in reviewing how it undertakes its work as the road ahead becomes clearer and the resources or options available may improve.
Court Buildings and Courtrooms
19. During June court buildings that have been ‘suspended’ or ‘staffed only’ are being reopened so that, by early July, the full Family Court estate should be open for public use once more, albeit that the impact of social distancing will substantially reduce capacity.
20.HMCTS has worked hard to develop and implement a risk assessment process[https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment _data/file/885607/HMCTS_Organisational_Risk_Assessment_v1.0.pdf]
which has allowed the system to identify a limited number of courtrooms as being appropriate for attended, socially distanced, hearings.
Each open court room will have a limit on the number of people who can attend a hearing, and the safe space for each attendee will have been marked out with vibrant tape. The number allowed in each courtroom is small and, in addition, there will be a limit on the total number of people who can be in the public areas of the court building at any one time in order to meet the Public Health requirements.
21. The call on these limited number of courtrooms will be substantial and will come from across the board from civil (inc Business and Property), crime and tribunals as well as the Family jurisdiction. HMCTS are working hard with the judiciary to 4 6 identify and secure additional temporary courtroom space outside the court estate (for example in conference centres, university or local authority facilities).
22.We have all learned a great deal about the various technical options that are available to facilitate a remote hearing. It is clear that there is a hierarchy between these various platforms in terms of their ease of use and effectiveness. But it is also clear that, because of work undertaken urgently by the various providers, additional features are added to one or other from time to time which may alter their place in the hierarchy so that it is not possible to issue firm guidance that one or other platform should always be used (as many respondents to the recent consultation earnestly sought).
23.The situation changes from week to week. Zoom cannot currently be supported by the judiciary and HMCTS, even though many users regard it as the most effective platform. The Cloud Video platform [CVP] favoured and provided by HMCTS, which has much more functionality than Skype for Business, is being prepared for widescale use across the jurisdictions. It is already being used in a number of criminal courts and, from the week commencing the 8th of June, it will be rolled out to Family Court centres. Microsoft TEAMS, which is the successor platform to Skype, is available for use by many judges.
24.Despite the necessarily moving picture that I have described, it is nevertheless possible to provide the following very firm steer:
a. In terms of remoteness, a remote hearing over the telephone is the most remote option other than a paper or an email based process.
b. Telephone hearings may be well suited to short case management or review hearings, they are unlikely to be suitable for any hearings where evidence is to be given or where the hearing is otherwise of substance.
c. Where a suitable video platform is an available and viable option, video, rather than telephone, should be used for the conduct of a remote hearing.
d. It is not a good use of a judge’s time for the judge to be responsible for dialling in each participant for a BT Meet Me hearing. HMCTS has accepted that the task ought to be undertaken by staff and they are working hard to achieve this in all courts.
e. Experience has shown that BT Meet Me Dolby Plug-In (which channels the phone call through the judicial computer) is preferable to the basic BT Meet Me service and it should be used where available when a hearing is to take place over the telephone.
f. The two video platforms currently supported by HMCTS are Skype and CVP; of these two CVP is more effective than Skype and should be used where it is available.
25.There have been regional training sessions for judges and court staff, supplemented by daily national awareness sessions and the issuing of staff guidance in respect of CVP. The HMCTS held three training sessions per day for three weeks commencing on 20 April 2020 to support the roll out of CVP during which nearly 1500 members of staff and judges attended.
26.Where possible, courts should inform the parties which remote platform is to be used for any hearing at least 3 days prior to the hearing.
Support for Lay Parties
27.The NFJO Report demonstrated the difficulty that some lay parties have understandably encountered when attempting to take part in a remote hearing. In the early days of lockdown there was often no option but for a lay party to join a hearing down the phone or over the internet from their home, without any direct real-time contact with their legal team. Easing of the lockdown requirements, development of our common understanding of social distancing, and the gradual reopening of facilities, together with technical workarounds to maintain an open line between lawyer and client during a hearing, have opened up options for enhancing the support that can be given to lay parties. This progress will undoubtedly continue and will mean that some hearings that were adjourned in the early days on the grounds of fairness may now proceed remotely.
28.In all cases active thought should be given to arranging for a lay party to engage with the remote process from a location other than their home (for example a solicitor’s office, barrister’s chambers, room in a court building or a local authority facility) where they can be supported by at least one member of their legal team and, where appropriate, any interpreter or intermediary.
29.The ability for interpreters to undertake their role without unduly interrupting a hearing is plainly a cause of difficulty. Where the process is conducted over an audio or video link, and the interpreter (who is not in the same location as their client) must interpret over the same common link, there will need to be a pause for interpretation after every single sentence or phrase. Even at a hybrid or open hearing, the interpreter must sit at least 2 metres from the client and cannot whisper the interpretation as is usually the case. The need for this stop-start process adds considerably to the length of any hearing. Where possible attempts should be made to provide a workaround, such as interpretation over a separate open phone line with the interpreter and client using earpieces, or typed interpretation over linked computers or email.
30.More generally, in circumstances where the majority of cases must now proceed remotely or semi-remotely, every effort should be made to accommodate and enhance the ability of lay parties to engage fully in the court process.
31. I am very grateful to the Transparency Project who have this week published a simple, nationally available, ‘Remote Court Hearings Guidance Note’ to assist lay parties and litigants in person by explaining what a remote or hybrid hearing in the Family Court may involve. The attention of all lay participants should be drawn to this most useful document.
The Family Judiciary (including Lay Justices) working in Court or at Home
32.The majority of Family judiciary have thus far worked from their homes. As the FJO Report indicates this has, for some, not been an altogether welcome or effective arrangement; for others, the change has been accommodated more easily. In the coming weeks, as all court buildings return to ‘open’ status, and the lockdown restrictions are gradually lifted, it is expected that many judges who have been based at home will return to working in a court building. In a message to the Judiciary dated 4 June 2020, the Lord Chief Justice has said:
“We must continue to look after our own and our families’ health. Some judges will need to continue to shield themselves or a family member. Others will need to isolate if they have coronavirus or have been in close contact with someone who has. In general, though, it is proving to be more efficient for judges to work from a court building, even when hearing cases remotely, where they can be better supported by staff, have space, access to the papers and none of the intrusions of working from home. Judges should aim to work from a court building where it is safe and efficient to do so.”
33.From now on the fee-paid judiciary (deputy district judges, recorders and deputy High Court judges) will be called upon in significant numbers to augment to the judicial resources available in the Family Court. This will be possible, in part, because of the higher number of sitting days allocated to Family for 2020/21 and because during the past two months we have ‘under-sat’ by not using many fee-paid judges. It will be possible for the fee-paid judiciary to work remotely, where this is appropriate and can be supported by sufficient court staff.
34.Lay magistrates play a crucial role in the Family Court, supported by experienced Legal Advisers. They are keen to contribute as much as possible as we tackle the problems caused by the pandemic. I am very pleased that steps are being taken to ensure that they can continue to hear cases and will now do so in increasing numbers.
Lawyers and other Professionals Unable to Come to Court
35.HMCTS has worked closely with professional bodies representing solicitors and barristers to explain and develop the extensive measures that have been, and will continue to be, undertaken in court buildings to comply with advice from Public Health England/Wales. Professionals who are not in recognised vulnerable groups will be expected to attend at court where required.
36.Those professionals who, unfortunately, are required to shield or in some other vulnerable group, are entitled to expect that the judiciary will be sympathetic to their situation and, will take all reasonable steps to make arrangements for the hearing to proceed which take account of their difficulties. Where, however, it is not possible, despite all best endeavours, to accommodate the absence of a professional who must avoid coming to a court building then, unless the interests of the child, fairness and justice can be met in another way, the court hearing should proceed in their absence, with any necessary arrangements being made to cover for the absent professional.
37.In all Family cases, regard should always be had to alternative means of dispute resolution. At a time when it is clear that the court will struggle to cope with the volume of cases in a restricted working environment, it is all the more important that parties, legal advisers and the judiciary should have express regard to all forms of non-court dispute resolution (in accordance with rule 3.4 FPR 2010) including mediation, conciliation or arbitration. There will be many private law children cases or financial remedy case that may be resolved by one or other of these alternative means.
38.All judges and practitioners are urged to familiarise themselves with these options and be prepared to identify those cases which may be suitable for one or other form of ADR.
WELL BEING AND COMMUNICATION
39.In the past two years those working in the Family Justice system have done much to raise awareness of, and address, pressing issues relating to individual and collective well-being. I have heard it said more than once that ‘with COVID all thoughts of well-being have gone out of the window’. To my mind, whilst such a statement may well have been apt during the early period, it could not be more wrong now that we are engaged on the long haul back to normality. In the present circumstances there is an enhanced need to consider well-being. The FJO report demonstrated some of the additional pressures and points of stress that remote working has placed on the professions and the judiciary. In terms of well-being, these must not be ignored. Steps must be taken, either in planning a hearing, or more generally locally in working practices, to identify strategies for reducing stress and maintaining personal and professional well-being.
40.Many DFJ’s have established regular virtual meetings with representatives of the local professional court users (for example a weekly ‘breakfast club’ or ‘tea’) where common problems can be aired and there can, more generally, be a useful channel of communication as to how things are going. I am keen to encourage these or similar initiatives. In this regard, each LFJB has a role to play and should be active in developing and promoting good practice in their area.
THE KEY MESSAGE:
Time Management – a significant change needed
41. The key message when describing The Road Ahead concerns ‘time management’.
42.Drawing the matters referred to above together, the following is clear:
i. The current restraints (or variants of them) are likely to obtain for many months to come;
ii. The volume of work in the system is very high;
iii. The Family Court was not coping with the pre-COVID workload and radical steps aimed at changing professional culture and working practices were about to be launched when the pandemic struck;
iv. The ability of the system to process cases is now compromised by the need to conduct most hearings remotely;
v. Whilst there will be some capacity for the courts to conduct faceto-face hearings, the available facilities will be limited;
vi. Remote hearings are likely to continue to be the predominant method of hearing for all cases, and not just case management or short hearings;
vii. Delay in determining a case is likely to prejudice the welfare of the child and all public law children cases are still expected to be completed within 26 weeks;
viii. Adjourning cases indefinitely or for a period of many months will not, therefore, be an option.
43.If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.
44.Clear, focussed and very robust management of cases will be vital in the coming months. The case management judge will have the difficult role of balancing the welfare of the child, the need for a fair and just process and the limited resources of space, time and format with the need to conclude the proceedings.
45.Adjourning the case to await a full face-to-face hearing is unlikely to be an option. The court must identify those issues and applications that need to be heard and then move on to determine them.
46.Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court.
47.It is important at this time to keep the ‘overriding objective’ as set out in Family Procedure Rules 2010, r 1.1 in mind:
“The overriding objective
(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
In these times, each of these elements is important, but particular emphasis should be afforded to identifying the ‘welfare issues involved’, dealing with a case proportionately in terms of ‘allotting to it an appropriate share of the court’s resources’ and ensuring an ‘equal footing’ between parties.
48.In keeping with the overriding objective and the elements highlighted in paragraph 47, judges should (after canvassing the point with the parties) consider whether giving a short judgment will be sufficient and proportionate in any particular case. In a short judgment the court will not be expected to set out a detailed recital of the evidence, save for those key elements which support the court’s findings and decision. There should not, however, be any reduction in the content and scope of the judge’s description of their analysis and reasoning.
49.Regard should also be had to the following:
COVID Case Management Checklist:
A Narrowing the Issues:
i. What issues are or can be agreed?
ii. Which of the remaining issues in the case is it necessary for the court to determine?
iii. Can those issues be determined without an oral hearing?
iv. If not, for which issues is an oral hearing necessary?
v. What oral evidence is necessary to determine those issues?
vi. The time estimate for each witness (including cross-examination) is to be reduced to the likely minimum necessary for the court to determine the issues to which it relates.
B Hearing Format:
i. Can the issues be determined fairly and justly at a fully remote hearing (having regard to the measures set out at C below)?
ii. Is it necessary to conduct all or part of the hearing with some of the parties in attendance at court [‘a hybrid hearing’]?
iii. Where a remote or hybrid hearing is to be held, it should be undertaken by video link, unless the court determines that a telephone hearing will be sufficient or a video link is not available;
iv. Where a telephone hearing is to take place, it should be undertaken via BT MeetMe Dolby Plug-in, if available;
v. Consideration should be given to access to the hearing by media or legal bloggers [FPR 2010, r 27.11, PD27B and PD36J];
vi. Where in ordinary circumstances arrangements would be made for a child to meet the judge, the court should strive to establish a means by which the judge and the child may ‘meet’, albeit that this may, in some circumstances, have to be via a video link rather face-to-face;
vii. The court should give at least 3 days notice of the platform that is to be used for any remote or hybrid hearing.
C Optimising Fairness of Remote Hearings:
i. The court should consider what options are available to support lay parties and enhance their ability to engage in a remote hearing. The options may include:
a. Attendance at a venue away from the party’s home (for example a room at court, solicitor’s office, counsel’s chambers or a local authority facility);
b. Arranging for at least one of the party’s legal team to accompany them (whilst observing the need for social distancing);
c. Establishing a second channel of communication between the lay party and their lawyers (for example by email, communication app or telephone during the hearing);
ii. Cases should be clearly timetabled with a start and planned finish time – where a witness template has been completed by the advocates and approved by the judge, it must be complied with save in exceptional circumstances;
iii. Regular short breaks should be provided in a hearing of any length;
iv. The overall length of the hearing should be reasonable, taking account of the need for breaks and of the acknowledged additional pressure of engaging in a remote court process;
v. Prior to the start of the hearing, all advocates should have communicated with their clients and with each other in an advocates meeting;
vi. All participants should be logged in and ready to start at the appointed hearing time;
vii. Advocates should ensure that they are available not only for the proposed length of the hearing but also for a reasonable period thereafter to de-brief their client and communicate with other advocates over the drafting of the order and any ancillary matters;
viii. At the start of each hearing the judge should make a short statement explaining the ground rules for the remote hearing;
ix. The judge should ensure that there is a means for a party to give instructions to their advocate during the hearing;
x. Where the hearing involves a litigant in person the judge should ‘check in’ regularly with any litigant in person to ensure that they are hearing, understanding and following the proceedings;
xi. At all times a remote hearing should be conducted with the degree of seriousness and respect that is evident at a fully attended hearing;
xii. The court should consider how best to arrange for the involvement of any interpreter or intermediary in the hearing;
xiii. The court should ensure that lay parties have access to the electronic bundle (unless this is not necessary, for example by reason of the hearing being an interim hearing where a party is represented and not required to give evidence).
BEST PRACTICE: FJO Report Section 6
50.In addition to the specific matters set out in the checklist at paragraph 49, regard should be had to the Best Practice suggestions that are helpfully set out in Section 6 of the FJO Report
The ‘Can Do’ Mentality
51. The task ahead for the Family Court in the coming months is a daunting one of continuing to strive to make correct and timely decisions for children and families, in a just and fair manner, despite very severe restrictions on ordinary working. It is impossible not to have been profoundly impressed by the endeavour of all involved in the past 10 weeks, be they staff members, professionals, lay parties or judiciary, in working so hard and so effectively to deliver an outcome in as many cases as possible. A ‘can do’ approach has been evident at all turns despite the very real difficulties that have been thrown up by the current crisis.
52.I am confident that this positive, problem solving, approach will continue to be seen throughout the period ahead in the Family Court, however long it may be. The song ‘He Ain’t Heavy’, which starts with the words ‘The road is long’, includes the phrase ‘We’ll get there’. If, in the context of Family Justice, ‘there’ means a return to more ordinary working, I am sure that we will get there – even though the road will undoubtedly be long.
Sir Andrew McFarlane
President of the Family Division
9th June 2020