No need to change on ‘Freedom Day’ how family courts and Court of Protection have been operating, says Family President

The President of the Family Division has ruled out issuing firm guidance on how the family courts and the Court of Protection should approach their work after 19 July – dubbed ‘Freedom Day’ – when coronavirus restrictions are lifted by the Government.

In his July 2021 View from the President’s Chambers, Sir Andrew McFarlane separately warned councils that the mandation date for every local authority in England and Wales to use the Family Public Law system (‘FPL’) – the paperless platform on which the procedural stages of all public children applications are, in future, to be conducted – was now only a few months away. “It is a question solely of ‘when’, rather than ‘if’, it is going to take place.”

On the issue of guidance, the President said that the judiciary was still “in the process of consulting, gathering data, discussing and taking stock”. He gave the following reasons for not issuing firm guidance before 19 July:

“a. We are currently working relatively well with the flexible use of remote, hybrid or fully attended hearings as the circumstances of each case may require. There is no need for this to change on one particular date; indeed, such an idea would do nothing but cause extensive confusion and difficulty

b. Whilst formal distancing requirements and other restrictions may be lifted in July, it seems unlikely that the need for caution and good sense in relation to social interaction will totally disappear on a particular date, with the consequence that not all of our court rooms and the public spaces in court buildings will, even then, be suitable for a full return to face to face use

c. Any move towards a new norm is likely to develop organically, with the support of guidance. Because of (a) above, we have time for it to do so, and it is better to proceed via consultation and planning, in the hope of achieving the best outcome, rather than rushing on to the next stage to coincide with a, necessarily, arbitrary date.”

Sir Andrew said that a further, “very important”, element in the judiciary’s planning was the aim that, if guidance was to be given, it was given on one occasion and in one document that was applicable across the board in the Civil, Family and COP jurisdictions.

“The Master of the Rolls, as Head of Civil, and I, as Head of Family and the COP, are united in having this as our clear goal,” he said. “Many of the judges hearing Family cases, particularly at district judge level, also sit in Civil and COP work. We have listened to what they have told us and will endeavour to ensure that the right balance between areas of work is maintained and that they receive a single unified message about ways of working.”

The Family President said that any guidance that was issued would not take the form of directive, mandatory instructions determining that certain cases must, or must not, be heard remotely.

“The approach that we have taken throughout has been to trust the judgement of the judge or magistrate in charge of each case to use their discretion appropriately when making case management decisions,” he said.

“Such guidance as may be issued will therefore do no more than provide a steer, or identify a default position, with regard to certain broad categories of cases, with the aim of assisting judges in making these decisions. My strong hunch is that there is already a widespread consensus as to the most appropriate format for different categories of hearing. We have, together, learned much about what works well, and what works less well, over the past 18 months. One aim of any guidance will be to foster consistency and predictability across England and Wales in this regard.”

In this View from the President’s Chambers, Sir Andrew also noted that HMCTS was continuing to develop the FPL, which had now been established at each DFJ centre in England and Wales. It is supported at a national Service Centre based at Stoke on Trent.

So far 93 of the 173 local authority users had joined up to the FPL system, although the proportion of cases that were online was, in most authorities, still low, the President revealed. “We are, nevertheless, getting close to the point when it is time for all involved to commit to the FPL system and for its use to be ‘mandated’ (that is for all new applications to be issued online rather than on paper at the local court).”

Sir Andrew acknowledged that there were, however, some remaining significant aspects of the FPL scheme which had been flagged up in early use and needed to be addressed before reliance on the system could be mandated.”

The Family President stressed that he would not approve a ‘mandation date’ for all courts until he was confident that these were resolved and that use of the system was adequately supported by trained staff at local courts and in Stoke.

Courts at Coventry, Worcester and Mid/West Wales are expected to go ahead and commit to 100% reliance on the FPL platform in July. A further group of courts seemed likely to be ready to follow in September, the President said, and it was expected that all of the remaining courts would be ready to move to 100% use of FPL by December.

The Family President said he remained firmly of the view that it was necessary to move to a fully digital platform for all family work. “As can be imagined, public law children is the most complicated category. It is also the first to get this far and it is not a surprise that problems are being encountered as the scheme starts to be used real time. It is a most unwelcome coincidence of timing that we have got to this stage when the Family Justice system is at total stretch dealing with the impact of Covid,” he admitted.

“When, however, FPL is up and running it should, and I am sure will, make our lives easier rather than harder. I need therefore to be clear, especially to those local authorities who have not thus far joined the system, that the mandation date for every local authority in England and Wales is now only a few months away. It is a question solely of ‘when’, rather than ‘if’, it is going to take place.”

The President also said amongst other things:

• A combination of a higher level than normal of adjourned cases since last March, and the continued rise in private law applications, had led to a position where the capacity of CAFCASS in England to take on and allocate individual cases to specific workers had reached the upper limit of what, for various reasons, was considered to be tenable and safe. Discussions were ongoing at a national level to consider what structural, administrative and other options may be available to alleviate this situation. He repeated his call for a very radical reduction in the amount of time the court affords to each hearing. “There is a need for us all to redouble our efforts in order to focus the hearing of cases in a proportionate manner, whilst still meeting the needs of the children and families who turn to the Family Court for protection and the resolution of disputes.”
• It was his intention to publish his conclusions on transparency at or soon after the end of July, following discussion at the President’s Conference. “Thereafter, if any changes are proposed, the way forward will depend upon the substance. At one extreme, any suggested change in statute law will obviously be a matter for the government and Parliament; at the other extreme, any change in practice would require reference to the Family Procedure Rules Committee and a likely period of consultation on such specifics that might be proposed.”
• The judiciary is drawing together data to evaluate how successful each area has been in implementing the recommendations of the Public Law Working Group which involve ensuring that the Public Law Outline is followed in all cases (save those of true emergency) with a view to, either diverting cases that might otherwise have come to court, or having those cases that do come to court fully assessed and prepared. “After the end of July, I anticipate that courts will expect that every public law children case will accord with the PLWG recommendations.”
• It is his ambition that, by the time he steps down as President, there will be an Family Drug & Alcohol Court in operation in every area of England and Wales.
• He continues to be concerned about the well-being of all those working in Family Justice and in the COP. “ I fear that some may feel that senior judges talk about well-being, but nothing concrete is ‘done’. To a degree this may be because any change for the better needs, primarily, to come from each individual being ‘well-being aware’ and changing their own behaviour, rather than from some initiative from on high. That said, I am constantly on the lookout for things that can be changed to reduce the demand on judges and all others. Currently, there is a need to give further consideration to the ever increasing volume of email traffic and I am actively engaged in looking at this. In addition, there is a need to control the amount of time and number of communications taken up by lawyers after a hearing to draft the court’s order.”

The View from the President’s Chambers (July 2021) can be viewed here.