President’s Guidance on Covid and the Family Court
The Guardian used to have a feature in its Saturday magazine: the Digested Read. This would involve John Crace summarising a book in about 700 words, and then (in “the Digested Digested Read”) condensing that summary into one or two words, like the final round of the hat game. “The Mandibles”, Lionel Shriver’s 800 page futuristic novel about the USA: Digested Digested Read = “The Unreadables”.
This blog is a Digested Read of “The Road Ahead: The Family Court and Covid 19”, a route map from the President of the Family Division, Sir Andrew McFarlane P, setting out how the family court will operate in the next six months or so. (Answers on a postcard as to what font McFarlane P is using: I’ve never seen it before)
“The Road Ahead” follows compendious guidance from:
- Sir Andrew McFarlane (“Covid 19: National Guidance for the Family Court“, 19 March 2020 (9 pages))
- Heads of the Divisions (QBD, Chancery, Family) joint letter to the judiciary, 9 April 2020
- Mr Justice MacDonald (“The Remote Access Family Court“, 4 iterations, latest: 16 April 2020 (v.4) (55 pages));
- For those with infinite amounts of time on their hands, a full list of the (dozens) of Covid-inspired guidance and direction, across all areas of law, can be found on the Judiciary’s website
In “The Road Ahead”, McFarlane P acknowledges that we are, in effect, all directed out:
“§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… I agree with this overwhelming view”
So, in the absence of further directive or prospective guidance (with one exception: see § 17 of The Road Ahead re: joint letter to the judiciary) , what are the takeaway points from The Road Ahead?
- In terms of social distancing restrictions etc it is clear that we are all in for the long haul: “…likely to remain for many months to come” (§ 1)… “…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” (§ 5, emphasis added);
- This elongation of the timescale for a return to normality must now be reflected in case management decisions. The need to achieve finality in family cases, and the detrimental effect of delay “…must form important elements in judicial decision making alongside the need for fairness to all parties” (§ 6). In other words, the courts should be less willing to adjourn cases since an adjournment will likely involve inordinate delay;
- The backlog of cases, already significant before March 2020, means that the court must face a new “reality” that “for a sustained period” a high volume of cases must be determined in a fair, just and timely way “in sub-optimal court settings” (§ 9);
- This is particularly acute in children cases where “…the need to avoid delay will always be a most important factor and may be determinative in many cases” (§ 12);
- The family court will be moving from working remotely to hybrid hearings (where some participants attend court and the others engage remotely) and, increasingly, attended hearings;
- The court buildings are due to reopen over June and July, on a reduced capacity basis (i.e. following risk assessments, only a limited number of courtrooms will be considered appropriate for attended, social distanced hearings, with a limit on the number of attendees in each courtroom etc) (§§ 19,20);
- The call on these courtrooms will be significant (from across the board) and enquiries may be made about the availability of space outside the court estate such as conference rooms (§ 21);
- In terms of video conferencing, Cloud Video (CVP) is favoured by HMCTS and is being prepared for widespread use across the jurisdictions. Microsoft Teams is available for use by many judges; Zoom is not. (§ 23)
- The following “very firm steer” is provided:
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
10. Perhaps the most significant part of ‘The Road Ahead’ relates to case management
§ 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.
11. Between §§44 and 46, McFarlane P notes:
§ 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.
…
§ 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.
12. With the objective of encouraging stricter case management, the court sets out a lengthy ‘COVID Case Management Checklist’, (A) narrowing the issues, (B) regarding the Hearing Format and (C) optimising the fairness of remote hearings. All of which should be read in detail in advance of a directions hearing.
The digested, digested read? “Carry on regardless”
Alexander Chandler, 9 June 2020
Family Brief 