Top judge warns of “unremitting pressure of work in the Family Court”

Judges, lawyers and others in the family justice system are “running flat out up a down escalator which, despite our efforts, is outpacing us”, the President of the Family Division has warned.

In his latest View from the President’s Chambers, Sir Andrew McFarlane said the latest figures indicated that, “despite the best efforts of everyone in the system, often working at well beyond capacity, we are not keeping pace with the volume of cases that are coming in and the backlog continues to increase”.

He highlighted how:

• Nationally the average length of public law cases had risen from 30.1 weeks to 32.5 weeks over the past 12 months, with the percentage achieving completion within the target 26 weeks falling from 50.1% this time last year to a current figure of 43%.
• There had been a welcome fall of around 7% nationally in the number of public law applications that had been issued, but this average figure masked quite stark regional variations with the North East region, in particular, seeing a significant rise in numbers.
• The number of outstanding public cases as at November 2018 was 14,845. It is now 15,804.

The Family President also warned that in relation to private law proceedings, the volume of work continued its “apparently inexorable rise”. Prior to July 2019 the system had never received 11,000 applications under CA 1989, s 8 in one month; since then that barrier has been breached twice, he said.

Sir Andrew praised the "dedicated and remorseless" work of all involved, leading to a corresponding rise in the number of cases that had concluded. However, he added that the ability to resolve cases had been outstripped by the volume of new applications.

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.

Sir Andrew said the Public Law Working Group, led by Mr Justice Keehan, was set to produce its final report during January 2020.

“The recommendations are likely to relate almost entirely to matters of professional practice and procedure, and will not involve any need for legislative change, thus allowing those who may need to implement the changes to get on with the process soon after the report is published,” he said.

“Indeed, it is the case that many local authorities have begun to refocus their work with families prior to issuing court proceedings and, as the modest drop in application numbers indicates, this is already having an impact. It is my hope that, following training for all involved, including judges and magistrates, we will have implemented many of the PLWG’s recommendations by the summer of 2020.”

He added that the Private Law Working Group, led by Mr Justice Cobb, must necessarily move forward at a slower pace as the problems in this area were “of a different order”. He noted how change in behaviour with regard to the court process in this area needed primarily to come from the lay parties, the parents, who bring or respond to applications regarding their children; “this is therefore much more difficult to predict and manage”.

Sir Andrew said he anticipated that next year, “once again”, the number of CJ and DJ ‘sitting days’ allocated to family work would increase, in order to improve the court’s ability to meet the increased volume of cases.

The Family President also revealed that the pilot under which local authorities issue public law applications online was running well and had been expanded to additional courts. It will be rolled out to all courts early in the New Year, DFJ area by area.

Four judges have meanwhile accepted invitations to advise the family judiciary on matters in four important areas: Lieven J will take the lead on ‘contempt and committal’, Judd J on ‘adoption’ and Gwynneth Knowles J on ‘FDAC’ (Family Drug and Alcohol Court). HHJ Carol Atkinson will advise on all issues relating to research relevant to Family Justice, and, in particular, will be a key link between the judiciary and the Nuffield Family Justice Observatory and will complement the link that the Judicial College has already established with the FJO, the Family President said.