Top family judge issues case management guidance against backdrop of rise in number of hearings per public law children case

The President of the Family Division has issued guidance on case management “with the aim of tightening up good practice” and returning to the principles of the PLO (Public Law Outline).

In his latest View from the President’s Chambers Sir Andrew McFarlane said there was a need for those in the system to reconnect with the core principles behind the 2014 public law ‘PLO’ reforms that arose from the 2011 Family Justice Review.

The President said this was part of his primary theme for the coming months of ‘Make Every Hearing Count’.

The judge said: “Despite the increase in judicial resources that we have had for the past two years, the number of concluded cases in both private and public law has not gone down. Statistics show that the number of hearings that are held before a case is concluded has increased.

“It is easy to understand the potential for Covid to hijack planned hearings, either by preventing assessments or other work to be done, or because key individuals are suddenly not available for a hearing. The need to hold more hearings per case, however, obviously reduces the efficiency of the system and has a direct impact on our ability to conclude proceedings in a timely manner.”

The case management guidance notes that the national average for the number of hearings per public law case is 6.2. In the year 2019/20 this figure was 5.8 per case. In 2016/17, it was 5.2 per case. The average length of a public law case in quarter 3 of 2021 meanwhile was 45 weeks, in 2020 it was 38.5 weeks in 2017 it was 28.2 weeks.

"If a region has some 3,000 public law cases per year, even an increase of 0.5 hearings per case means that the system has to list an additional 1,500 hearings to complete these cases," the guidance says.

In the View from the President’s Chambers, Sir Andrew mentioned how a very experienced child-care solicitor had recently described to him how busy she was. “The busyness was not because she had more cases, it was simply due to the fact that none of the cases that she had ever seemed to conclude. That experience, which I suspect is shared by many, fits with the ‘more hearings per case’ data that I have described.”

The President said that whilst this might have become the common experience, it must not be accepted as the norm for the future. “As restrictions and the impact of the virus reduce, now is the time for each of us to take active steps, case by case and hearing by hearing, to reverse this drift by ensuring that every hearing is effective.”

He said that where, before a planned hearing, it becomes clear that that hearing cannot be effective, the parties should communicate with the court so that, if the judge agrees, the hearing date can be vacated and (if possible) used for another case.

The President said the Management Guidance in Public Law Children Cases: March 2022, with its twin mantras of ‘Make Every Hearing Count’ and ‘Keep Cases Short’, spoke for itself.

The aim, he insisted, was not to pile more work onto practitioners. “To the contrary, the aim is to take out unnecessary time and work from each case to allow those involved to work more efficiently on that which does need to be undertaken to achieve a final decision.”

In the View from the President’s Chambers, Sir Andrew also highlighted the recommendations of the Public Law Working Group. “Separately from moves to increase the efficiency of the court process by making every case count, pressure in the system can be alleviated by securing a drop in demand (by a reduction in applications) and by improving the quality of evidence in support of any application that is made. It is to these twin goals that the Public Law Working Group recommendations are aimed.”

The President said that since the launch last April, it was the expectation that the PLWG recommendations would be taken up by every local authority in England and Wales, and that, where a local authority does issue proceedings after a thorough assessment process, the court would be able to engage with the case efficiently and without further assessment work being directed unless that is ‘necessary’.

“Early reports from some areas suggest that the PLWG model is having a marked and beneficial impact,” the judge said, adding that a proper evaluation is to be undertaken in March to coincide with the anniversary of the launch and will be published at that stage.

“The PLWG recommendations are, I believe, an uncontroversial statement of good practice; I would urge everyone engaged in public law children work to ensure that they continue to be taken up and adopted.”