Category: Procedure

“…Perhaps the only certainty about an FDR indication is that the outcome at final hearing is almost bound to be different”

As family lawyers, we are good at some things; less so at others. 

Our strong suit is thinking creatively and holistically in finding a solution to any given case. We are comfortable with the concept of discretion; or at least we become so after a few years’ experience of how the courts actually deal with financial remedy claims.

Where we tend to be weaker is with the traditional lawyerly craft of building a case: evidence-gathering and proving facts in court. That isn’t to say we’re bad lawyers. It’s the product of several factors: (1) the law of financial remedies being all about balance, weighing competing legal and factual arguments, as opposed to determining whether a party has proven the elements of her case to the requisite standard; (2) the overarching objective of fairness and the court’s quasi-inquisitorial function, which mean that, while a devastating cross-examination can materially reduce an award, it will rarely produce a knock-out blow in terms of a claim being dismissed; (3) as advocates we have far less experience of having evidence tested in court, compared e.g. with criminal advocates, many of whom will have acquired close to the 10,000 hours required for expertise.

The FDR

The FDR is a good example of where family lawyers found an innovative way to resolve disputes at a relatively early stage, without worrying too much about evidential proof. By giving an indication, judges give a cautious assessment of the likely outcome, mindful that (a) final evidence has not yet been exchanged; (b) the oral evidence has not been tested, (c) the assets will almost certainly look different at trial, if only to reflect the drain of legal costs.

This, plainly, has never been an exact science. It is easier to give a view about a principle (e.g. the extent of a sharing claim, the relevance of inherited assets) rather than a fact-specific issue such as housing need or maintenance. The reality is, as they say in Hollywood, no one really knows the answer, when it comes to factual issues. Also, litigation is dynamic: particularly so in family cases where the parties do not at the outset have to state their case in detail (cf. Part 7 claims). Between FDR and final hearing, assets may have changed in value, liabilities will rise, there could be updating expert evidence, the parties will produce new evidence (e.g. housing particulars) in addition to s.25 statements which will not be before the FDR judge. New factual or legal arguments may be articulated as late as the day before the hearing. Trials are inherently unpredictable: witnesses say unexpected things, the court exercises a broad discretion and individual judges may be more interested in certain arguments than other ones.

Or, to quote the old cliché, no one ever steps in the same river twice because it’s not the same river.

There are no statistics about the accuracy of FDR indications. Perhaps the only certainty about an FDR indication is that the outcome at final hearing is almost bound to be different: hopefully not different in terms of principle; but almost certainly different in terms of the precise calculation.

However, an FDR is unquestionably a hugely valuable exercise, where parties can see the strength of their arguments tested, and if only because the combined costs of proceeding to trial are probably higher than the margin of error in many indications.

Innovation of the private FDR

If the innovation of an FDR was a good one, the private FDR was a brilliant one, in terms of providing a forum where the parties could select a tribunal (which generally means both sides have expressed confidence in the individual); which will have received and read the papers in advance and will be able to concentrate exclusively on one case during the day. The parties have the time to see their evaluator when they are ready; there is not another case waiting to be heard.

The anecdotal evidence (query if that is a contradiction in terms) is that private FDRs have better outcomes in terms of the likelihood of settlement, in spite of full-time judges unquestionably having the greater experienced and knowledge of actually hearing contented applications at trial.

Here I should declare an interest: I have sat part time as a judge for ten years and as a private FDR for nearly as long. I enjoy hearing private FDRs and being engaged in problem solving, guiding people towards settlement and away from the brutal experience and cost a final hearing. Private FDRs involve the best elements of sitting without the pressure of late receipt of papers or the pressure of having to get through numerous cases in a list. I should say I also enjoying hearing a FDR as a judge but typically that will be in a list of 3 or 4 in a single day and while I will do my best to apply the same attention to each case, there are only so many hours in day for pre-reading.

Issues with the private FDR

So, what is the problem with private FDRs? They clearly work well and have resolved some of the most intractable cases, thanks to the availability of an informed tribunal who has had the time to consider the papers in detail.

In my view, there are a handful of issues, most of which relate to the evolution of the court FDR from something relatively short and summary (i.e. typically 1 or 2 hours in a family court; a day or longer in the High Court) to a more ‘Rolls Royce’ service where the private FDR hearing can take several hours: advocates lodge lengthy position statements and speak to them for over an hour; evaluators who attempt to cover the arguments so comprehensively that the indication turns into something like a mini-judgment.

The reasons for these development are understandable: lawyers and tribunals want to ensure the clients feel they get value for money. However, this development and elongation of the process risks undermining the essential nature of the FDR: to give a view based upon a neutral evaluation of the case, before the final evidence has been adduced – and with it the opportunity to settle can be lost. This expansive approach to the private FDR can give the parties the false confidence that a detailed indication based upon untested evidence is somehow a more reliable guide of what will actually happen at trial.

Here are what I would suggest are the problems:

1. Selection of tribunal

There is a free market in terms of who is selected as a FDR evaluator. However that market does not appear to be working fairly in terms of the instruction of women evaluators. Katherine Landells from Withers LLP has been campaigning on this issue for some time. All I can add, from my perspective, it that is difficult to fathom why this problem arises given the sheer number of excellent women FR specialists, many of whom have relevant judicial experience. Off the top of my head, I can think of a dozen names (just in terms of barristers) who I would have no hesitation in recommending: Katie Cowton KC, Alexis Campbell KC, Sally Harrison KC, Samantha Hillas KC, Sarah Phipps KC, Jude Allen, Fiona Hay, Lucy Owens, Nicola Fox, Zoe Saunders, Niki Langridge, Helen Brander, Laura Heaton, Katherine Kelsey, Laura Moys, Marina Faggionato, Amy Kisser (with apologies to those who I have not named)

2. Giving evidence by proxy

In life, nothing stands still. Within the span of my own career (25 years) this area of law has changed unrecognisably, both in the applicable principles (from reasonable requirements to fairness and sharing) and also in its practice (of lodging written notes). When I began, older barristers complained about the innovation of having to lodge a position statement instead of setting out a case orally (“It’s the end of the Bar”). Now, written submissions have gone through a sort of hyper-inflation whereby tracts of 20 or 30 pages are often lodged for an FDR, accompanied by an array of schedules, net effect calculations and Capitalise calculations.

The length of these documents can be a problem per se. Practitioners habitually ignore paragraph 24 of the Efficiency Statement (19 January 2022) which requires that position statement should be “concise” and not exceed 6 pages for a First Appointment, 8 for an interim application, 12 for an FDR and 15 for a final hearing.

But there is a more serious problem at a private FDR, which will generally take place before the exchange of witness evidence, where the line between a position statement and what should be the contents of a witness statement is blurred to the extent that the writer of a position statement effectively gives evidence by proxy, the day before the FDR, without a signed statement of truth, with the expectation that the document will attract FDR privilege.

The effect is that in some cases the orderly hearing of a private FDR is hijacked by the presentation of contentious and sometimes incendiary allegations on the eve of a hearing. This uses up time both in conference (where instructions are taken on the points for the first time) and during the hearing, which the other advocate may feel the need to respond in detail. Even though most tribunals will reiterate that they are not in a position to resolve (or give an informed indication in relation to) factual disputes.

This is not to promote a counsel of perfection. Clearly, advocate will want to summarise a factual case in the document, which will likely involve filling in certain gaps from the contents of a Form E or replies.

However, parties should be alive to the risk that where a position statement covers the points in too much detail or introduces new allegations that have not been articulated earlier the whole point of attending the private FDR will be blunted because time will be taken up in responding to these allegations.

3. Filibustering

A connected problem is how much time advocates take in making their oral submissions at a private FDR.

In most court FDRs there is a natural limit to how long the advocate will address the court: this is typically in the region of 20-30 minutes, assuming that the listed time is one hour.

At a private FDR, that pressure of time dissipates. Advocates can usefully take their time and expand on points which might assist with the evaluator’s indication. However, the lack of time pressure can be (ab)used when an inordinate amount of time is taken to set out a case on disputed issues. For example, I recall a case where the one advocate spoke for over two hours, covering numerous points of what their client was likely to say. Since the private FDR tribunal sits as an evaluator (and not a judge), they may feel they have less control (or be less willing) to impose some sort of ‘cloture’ to this ‘filibuster’ that a judge who has a list of other cases to hear on the same day.

Why is this a problem, given that it is for the parties to decide how best to use the day?

Firstly, because, just as every act has an equal and opposite reaction, where one party dwells on the detail for so long, the other party will likely want their advocate to respond in kind. Secondly, at the risk of stating the obvious, because any FDR involves two stages: the FDR hearing and the parties’ negotiation. However erudite an indication the parties need to have time to consider it and negotiate. It is good practice to have the indication before lunch to allow a half day for discussions. This is why a court FDR starting at 2pm or 3pm is such a bad idea. Thirdly, where the advocates take all to most of the morning to set out or respond to factual allegations, the time for the indication is put back until after lunch. In my experience, some clients will either begin to lose focus or will tire by 3pm or 4pm. It is generally speaking less than ideal to start negotiations at that stage – even in a comfortable environment where coffee and expensive biscuits are freely available.

4. Indications that are practically mini-judgments

The perceived need of advocates and evaluators to give value for money by setting out a case so expansively risks undermining the whole point of attending an FDR (reaching settlement) and invites the evaluator to give an indication which becomes more like a judgment.

An indication is not and cannot be a judgment for the simple reason that the tribunal hearing a FDR/ private FDR has not seen the final evidence and has not heard the parties evidence tested in the witness box. While in some cases the evaluator may be willing to give a view (based upon a gut instinct or even ‘judicial notice’), where this strays into giving a provisional assessment of the merit of an inchoate factual case on e.g. housing need or income need, the danger is the indication can involve speculation on what the parties might say, how their evidence might be tested and how a judge might approach the detail in future (where the figures will likely be different).

It is perfectly understandable why a private FDR evaluator, acting with the very best intention of wanting to give the parties value for money, would give a lengthy detailed indication, even one backed by their own net effect schedules, but this apparent value for money might not achieve what the FDR is all about. The parties may end up taking time in conference to discuss everything that the evaluator has said. One party may feel dissatisfied if the evaluator has formed a preliminary view without having heard from him. The erudition of a legal analysis might assist the advisers but it will have limited use for the lay clients.

Ultimately, as a general rule of thumb, it is suggested that a private FDR indication needs to be clear, honest (in terms of explaining that this area of law is discretionary and fact-dependent) and above all explain the commercial reality, that while a view has been given on the facts, the costs of taking this to trial could well be disproportionate.

So, can be done?

The following is suggested as some practical solutions to the problems which, it is accepted, are not universal but arise in a minority of cases:

1. In terms of selection of tribunal, the adoption of a voluntary practice whereby lists of (say 3) proposed FDR judges should include at least one woman. Practitioners should be aware of the excellent PFDR Directory on the Financial Remedies Journal Website;
2. In terms of written submissions, that there should be a strict application of the existing rules for length of bundle and position statements save e.g. where agreed in advance or brought to the evaluator’s attention. It may be worth considering, where a position statement has descended into factual submissions, if those parts of the document can be excised from the privileged part of the note and referred to later on, in the same way as factual assertions contained within a without prejudice might not be;
3. There should be some understanding in advance as to the length of oral submissions (typically limited to 45 minutes or 1 hour each) to enable the indication to be given, if at all possible, before lunch.
4. In terms of indications, the parties are undoubtedly assisted by a short summary of the evaluator’s views. However, a lengthy document which sets out the law in detail might not assist if it would take a large part of the remainder of the day to unpack its contents.

Alexander Chandler KC
11 May 2023

There comes a point in life when you turn on the radio and think ‘this isn’t music; it’s just noise’. Or somebody says less pages instead of fewer and you inaudibly tut.

The law provides endless opportunities for this creeping pedantry, as you gradually turn into your own parent. My personal favourite is pointing out that there’s no such thing as a First Directions Appointment (FDA). And there isn’t. Look at the FPR 9.15: it’s called a “First Appointment”. There are no references in the rules to First Directions Appointments or FDAs. Eternal shame on Resolution for publishing a ”Guide to the First Directions Appointment”.

Does this matter? Well, there aren’t many cases which turn on whether you’ve mistakenly put the word ‘directions’ into a chronology. But then again, if we’re being honest with ourselves, every lawyer gets a small sense of satisfaction from being right, or from using the correct term. There are few careers more focused on deploying le mot juste. Where it can take years to live down the mistake of addressing a district judge as mum instead of ma‘am, where entire TOLATA claims go awry for confusing promissory estoppel with proprietary estoppel.

For this post, the pedantry du jour is what rules apply to written submissions and what should they be called? In financial remedy hearings these are described variously as Position Statement, Case Summary, Note, Skeleton Argument or Written Case. Invariably they all are all substantively the same: a gumbo of narrative background, legal citation, analysis of the issues (occasionally) with a soupçon of having a really good moan about the other side.

So what actually is the difference between a position statement and a case summary? This involves a detailed consideration of FPR Practice Direction 27A, (which I shall refer to, inaccurately, as the Bundles Direction.)

“Case Summary”

PD27A requires the court bundle to contain preliminary documents, including “…an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if possible, to four A4 pages” (§ 4.3(a)), but no longer (“unless the court has specifically directed”) than six pages (§ 5.2A.1).

An interesting comparison can be found at CPR PD 29A § 5.7 which provides that in civil proceedings, at a multi-track CMC, the case summary should not exceed 500 words.

Why, one wonders, do family litigants get up to six pages (roughly 2,250 words if 1 1/2 spaced) where civil litigants have to do it in about a quarter of the space? Are family cases inherently more complicated than civil claims? Or do family lawyers have less time to make their documents shorter? Maybe this is just another example of things happening differently and more loosely in family cases (see e.g. rules of evidence).?

So, a ‘case summary’ should explain the background to a case relevant to the specific hearing in no more than 4-6 pages.

“Position Statement”

Distinct from a case summary is a position statement which should include “a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing” (§ 4.3(c)). Again, unless the court has directed otherwise, this should be a maximum of three pages long (§ 5.2A.1).

However, the recent ‘FPR Good Practice Protocol’ (November 2019), which provides that in most cases questionnaires should be no longer than four pages (GPP § 13), states that (without derogating from the Bundles Direction) it is ‘good practice’ that a position statement including schedules should not cover more than 5 pages for a First Appointment, 10 pages for an FDR and 15 pages for a final hearing. Plainly this does not contemplate a 10 page position statement in addition to a case summary etc – it would appear that the framers of the GPP have a different interpretation of a ‘position statement’ than appears in the Bundles Direction;

“Skeleton Argument”

Unlike a case summary and a position statement, the rules do not require a skeleton argument. It should only be filed “if appropriate” (§ 4.3). A skeleton should be no longer than twenty pages (§5.2A(1)). However if the case is proceeding before a High Court judge, in which pursuant to Mostyn J’s ‘Statement on the Efficient Conduct...”, in which case there are specific provisions of para. 15 of that guidance which should be followed including that the page count should not exceed (respectively) 10, 15 and 20 pages for a First Appointment, FDR and final hearing without extensive quotation from the authorities;

By contrast, in civil procedure, the presumption of whether to file a skeleton argument is the other way around: skeleton arguments should be filed where the case is before a judge unless the hearing does not warrant one (see, e.g. Chancery Guide § 21.73), and will “almost invariably be essential” at a case management directions hearing (Chancery Guide § 17.20). Interestingly, this applies a broader interpretation to what constitutes a skeleton, i.e. “…a list of the persons involved in the facts of the case, a chronology and a list of issues will also be required… to be agreed where possible” (Chancery Guide § 21.75)

Skeletons for appeals in the family court (up to High Court level) are covered in FPR PD30A para 5.13 to 5.22 which contain the guidance that:

5.18 A skeleton argument must state, in respect of each authority cited –

(a) the proposition of law that the authority demonstrates; and

(b) the parts of the authority (identified by page or paragraph references) that support the proposition.

5.19 If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state the reason for taking that course.5.20 The statement referred to in paragraph 5.19 should not materially add to the length of the skeleton argument but should be sufficient to demonstrate, in the context of the argument –

(a) the relevance of the authority or authorities to that argument; and

(b) that the citation is necessary for a proper presentation of that argument.

The contents of a skeleton appeal prepared for an appeal to the Court of Appeal must comply with CPR PD 52A, Section V, and in particular the following:

(1) The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.

(2) A skeleton argument must–

– be concise;

– both define and confine the areas of controversy;

– be set out in numbered paragraphs;

– be cross-referenced to any relevant document in the bundle;

– be self-contained and not incorporate by reference material from previous skeleton arguments;

– not include extensive quotations from documents or authorities.

Schedule of assets

Curiously, the Bundles Direction contains no requirement to file the single most important document in any financial remedies case: a schedule of assets, or the second most important; a net effect calculation. There is a (generally overlooked) suggestion at FPR PD9A § 4.1 that the parties should “if possible” lodge an agreed schedule of assets, agreed summary and draft directions, before a First Appointment. But there is no equivalent provision before an FDR or final hearing. The Good Practice Protocol invites opposing advocates ‘wherever possible’ to work together to produce a “single (if possible agreed) assets schedule” (§ 14).

In practice it is extremely risky to attend an FDR or final hearing without a schedule (although this does still happen, even with seasoned representatives). There is similarly no guidance in the rules as to the format of a schedule: this has led to two broad schools of thought: the ‘Third Columnists‘ (Jt, H, W) vs ‘Second Columnists‘ (W, H, joint assets divided equally). For what it’s worth, I am a committed Third Columnist.

But, does anyone actually follow the Bundles Direction?

Strict compliance with the Bundles Direction § 4.3 would involve seven separate documents appearing at the front of the bundle for every hearing: (1) a case summary, (2) statement of issues, (3) position statement, (4) chronology, (5) skeleton (optional), (6) list of reading, (7) time estimate, which should comply with the strictures of § 10.1, ie

“(a) specify separately: (i) the time estimated to be required for judicial pre-reading; and (ii) the time required for hearing all evidence and submissions; and (iii) the time estimated to be required for preparing and delivering judgment”

This excludes the further three documents which the parties are encouraged to file before First Appointment (FPR PD9A §4.1) – making in theory a running total of ten.

However, §4.6 provides that “a final hearing, and shall so far as practicable in the case of any other hearing”, the first four documents may be consolidated into a single document – although this should be agreed, with any disagreements identified.

All of the above should be as “short and succinct as possible” (§4.4), cross referenced against the paginated bundle (§4.4) and where possible agreed in a single document with disagreements marked (§4.5)

In reality…

In this age of micromanagement, where the Bundles Direction descends to the detail of prescribed font size and line spacing (§5.2), it’s noteworthy that no one actually follows the provisions of the Bundles Direction to the letter in money cases. It may be that in other areas (public law children for example) it makes more sense to have such a multiplicity of documents.

As noted above, what happens in financial remedies is that each party’s advocate lodges a single (and not agreed) document, comprising a mixture of factual background, sardonic asides, law and sometimes analysis (see earlier post, “The Ten Commandments of Financial Remedy Notes”).

And the Bundles Direction doesn’t really cater for this, in terms of how long such a composite document should be, or even what it should be called. The Good Practice Protocol comes closer to recognising reality in its provisions relating to Position Statements (see above).

So I will offer my own, unauthortative thoughts:

1. When filing a composite document it is probably better to avoid terms such as Case Summary or Skeleton, which have defined meanings in the Bundles Direction;

2. The term “Note” is probably fine (if a little undersold), as is “Position Statement” (even though that has its own precise meaning in the Bundles Direction, cf. Good Practice Protocol). For those with grander aspirations, the term “Written Case” (which is used when filing documents at the Supreme Court) also works

3. The page limits in the amendments to the Bundles Direction are if anything conterproductive: § 5.2A.1 allows a total of 42 pages for the preliminary documents (excluding the time limit/ trial timetable). That is like setting the speed limit at 180 mph on the motorway.

4. In terms of length, and I cannot emphasise this too strongly, shorter is better. Judges do not have the time to read through a 30 page magnum opus in a busy list. The almost universal experience which comes from sitting as a judge or arbitrator is err on the side of brevity – see the FLJ Guide to the FDR § 19

5. Always lodge a schedule of assets and (at FDR or final hearing) a net effect schedule.

6. When you have the time, lodge draft directions / a draft order.

7. Finally, with the current Covid crisis in mind, do not overlook the following provisions contained in the Good Practice Protocol: where documents are lodged by email the time limit is 2pm the day before (GPP § 14, cf. 11am in the Bundles Direction), and the Financial Remedies Court (even pre-covid) encouraged submission by email so that the hearing can be paperless.

Alexander Chandler

2 July 2020

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?

1. 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);
2. 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;
3. 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);
4. 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);
5. 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;
6. 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);
7. 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);
8. 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)
9. 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