New Family Court wellbeing protocol for Birmingham bids to tackle ‘by return, twenty-four-seven, last-minute culture’

January 15, 2020

The Wellbeing Committee of the Family Court at Birmingham has introduced a protocol this month with a view to professionals, practitioners, court staff and members of the judiciary being able to benefit from increased wellbeing, a reduction in unnecessary stress and the achievement of a better work life balance,

The committee comprises the Designated Family Judge for Birmingham, Her Honour Judge Sybil Thomas, and representatives of Birmingham Children Trust and Solihull Metropolitan Council amongst others.

The protocol highlights the reminder issued last month by the President of the Family Division, Sir Andrew McFarlane, of the unprecedented workload the family justice system is experiencing.

It says the impact of this workload was magnified through the use of electronic communication, which “tempts many into a ‘by return, twenty-four-seven, last-minute’ culture of working”.

The protocol says: "If we are to manage our workload effectively and continue to serve the children and families who come before the Family Court at Birmingham, all those working in the system must ensure that they are mindful of their own wellbeing and that we all endeavour to ensure that we comply with the suggestions made in this Protocol" [document's emphasis]

The protocol says that it is "the hope and expectation" of the Local Family Justice Board that professionals, practitioners, court staff and members of the judiciary would work together to achieve the steps set out in the document.

The wellbeing protocol states, amongst other things, that:

Any temptation to over-list to ‘get through the work’ is to be resisted. "Where there is pressure on the list, it is the list that should give way and not the wellbeing of professionals, practitioners, court staff and judges.
There should ideally be a lunch break of 1 hour between 1 pm and 2 pm, saying: “Professionals, practitioners, court staff and judges have a reasonable entitlement to a lunch break. Lunch breaks should be used for lunch.”
Court hearings should not commence before 10 am and should end at 4:30 pm, “with an absolute cut off at 5 pm, save in exceptional circumstances (such as an urgent removal hearing) or with the agreement of all those involved”. It says it was "not unreasonable for professionals, practitioners, court staff and judges to expect to be able to return home in time to fulfil childcare or other caring commitments. No one should be expected to have to reveal details of their personal or professional commitments.”
There should no longer be an expectation that “professionals, practitioners and judges will work late into the night and for significant parts of a weekend or while on leave, in order to deal with their workload or to meet deadlines”.
A “last-minute work culture” increases stress. “The availability of electronic communication does not justify the late delivery of instructions, evidence, information etc”.
Within this context, Practice Direction 27A requires that a paginated bundle be delivered to advocates not less than three working days before the hearing (paragraph 6.2) and that the bundle be lodged with the court not less than two working days before the hearing (paragraph 6.3). "It is not reasonable to expect anyone to digest hundreds of pages of evidence the night before a hearing or, worse, on the morning of the hearing”.
The sending of work-related emails should ideally be confined to business hours. "However, it is appreciated that some practitioners may keep different working hours due to caring responsibilities or other factors. In any event, there should be no expectation of a response after 6pm or before 9am. There should be no expectation of a response if someone is on holiday and has an ‘out of office’ reply that is active." Reply All’ responses to emails should be avoided where possible. Only those directly concerned with the relevant communication should be included.

The protocol lays out guidelines for producing court documentation. It says that:

Case summaries should be short and should focus on the issues with which the listed hearing is concerned.
Position statements should omit summaries of the background (which can be placed in the case summary) and ordinarily should be limited to one side of A4 and to a maximum of three sides of A4, setting out the parties’ position using bullet points in respect of the issues for that hearing. "Bullet points can be expanded upon in submissions. Position statements should ordinarily be provided by no later than 4 pm on the day prior to the hearing."
Witness statements should avoid the repetition of matters which are contained in earlier statements and should concentrate on the issues that they are directed to deal with. There is no need to repeat the same information within the same document.

The protocol acknowledges the statutory requirement to complete public law proceedings in 26 weeks. "However, the Court should be careful only to approve realistic timescales which can be achieved by practitioners, social workers and family court advisers, which will take account of their professional and personal circumstances and commitments (e.g. team meetings)."

It adds that with a view to ensuring that hearings are as effective as possible, advocates’ meetings need to be attended by the advocate or legal representative who will be attending the next hearing or who is fully instructed. Draft orders should, wherever practicable, be available for discussion at advocates’ meetings. "Effective advocates’ meetings should always decrease the amount of time advocates need to spend at Court."

The protocol warns that non-compliance with orders adds to the pressure on professionals, practitioners, court staff and judges. "Case management orders must be complied with and where compliance is not going to be achieved an application to vary the relevant direction must be made before the time for compliance expires."

The document also sets out, pending the report of the President’s Working Party on re-drafting order templates, the information that orders should contain.

It adds that:

The applicant should provide a draft order to all parties prior to the hearing and preferably sufficiently in advance of the hearing to enable the representative for each party to have considered it in advance of their arrival at court.
Unless the circumstances are exceptional, amendments to orders should be drafted and approved by the Court before the parties leave the court "in order to avoid lengthy and time-consuming email exchanges following the hearing."

In December the President of the Family Division, Sir Andrew McFarlane, warned that judges, lawyers and others in the family justice system were “running flat out up a down escalator which, despite our efforts, is outpacing us”.

The Family President said that wellbeing and morale remained at the very top of his agenda.”To this end, I have encouraged each of the 42 Designated Family Judges [‘DFJ’] to facilitate a conversation with all those who use or work within their area to develop a simple statement of understanding as to what is, and more importantly what is not, to be expected in terms of working hours and working practices.”

The judge said it was his hope that all 42 of these documents would be completed by the end of January, adding that it may then be possible to distil the key points with a view to issuing national guidance.

Adam Carey