Corners may have to be cut and time limits exceeded: Family President

It is neither necessary nor healthy, “in these highly pressured times”, for the courts and the professionals to attempt to undertake ‘business as usual’, the President of the Family Division has said.

In a section on well-being in his first View from the President’s Chambers since he succeeded Lord Justice Munby, Sir Andrew McFarlane warned: “For the time being, some corners may have to be cut and some time‐limits exceeded; to attempt to do otherwise in a situation where the pressure is sustained, remorseless and relentless, is to risk the burn‐out of key and valued individuals in a system which is already sparely manned in terms of lawyers, court staff and judges.”

The judge called for local dialogue between the legal profession and each designated family judge (DFJ) so that some parameters might be agreed as to what was and was not sensible or acceptable in terms of working practices during the next six months or more.

Sir Andrew added that the following were no more than suggestions for what might be discussed and agreed:

• The earliest time of day when the court can reasonably be expected to sit;
• The latest time of day when the court can reasonably be expected to sit;
• The latest time in the evening, and the earliest time in the morning, when it is acceptable to send an email to another lawyer in a case or to the court;
• Reducing the components to be expected in a ‘Position Statement’ to the minimum required (for example simply one side of A4 using bullet points) on the basis that a fuller oral position can be outlined at court if required.

Other possible topics for agreement might well present themselves to those who are regularly undertaking this work, Sir Andrew suggested.

The President said: “As family lawyers and judges it is, for me, a total ‘given’ that you will go the extra mile for the sake of the child, the parties and the system when this is needed. You will, I am sure, continue to do so.

“My present purpose is to acknowledge publicly that we are currently in a situation that cannot be accommodated simply by working beyond what can reasonably be expected every now and again. As Sir James Munby rightly observed before 2016, when declining the encouragement of others to require the courts to make an extra effort to achieve the 26‐ week deadline, the system then was working flat‐out. That was before the 2016/17 increase of 25% in workload. In terms of considering just what the system can sustain recalling Sir James’ words at this stage is timely.” [President’s emphasis]

He added: “My aim in now saying what I have is to give each of you, as the psychologists would say, ‘permission’ to have a sensible discussion with each other and establish a dialogue between local professionals and the local judiciary in order to develop sensible parameters and guidelines on what can, and what should not, be expected from those appearing before and working in the courts.”

Sir Andrew also revealed that three working groups had been set up to improve understanding of the difficulties faced by the court and to develop solutions. They will cover:

• Public law (chair: Keehan J)
• Private law (chair: Cobb J)
• Experts: (chair: David Williams J).

The working groups are expected to produce a final report and proposals for change by Easter 2019. “My aim thereafter is to flesh out the detail of any proposed changes in procedure and practice in consultation with each DFJ and FDLJ prior to wider consultation and implementation as soon as possible thereafter,” the President said.