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The Road Ahead: The Family Court and COVID-19

Date:16 JUN 2020
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The President of the Family Division, Sir Andrew McFarlane, has published a document entitled 'The Road Ahead', aimed at establishing a framework for the Family Court in England and Wales by attempting to chart the road ahead over the next six months or more.

He writes: "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 on remote hearings in the Family Court in early May 2021 . It 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."
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He continues: "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.

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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.

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The key message when describing 'The Road Ahead' concerns ‘time management’.

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.

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."

The full document can be read here.

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