TACKLING THE LOW OF AN ‘ALL-TIME HIGH’ 

Published on 22 March, 2022 | Louise Butcher

Although the world seemed to grind to a halt during the pandemic, family life went on.

Whilst the closure of schools and the switch to working from home meant great change for many households, those individuals who were untouched by Covid-19 were able to carry on much as before.

So too did the issues which arise as a regular part of family life. Over the last two years and particularly as lockdown restrictions have lifted, people have formed relationships, had children and separated.

All that has meant that the work of the family courts has continued.

In the early stages of lockdown, the President of the Family Division of the High Court, Sir Andrew McFarlane, published guidance for family courts and lawyers to enable them to deal with the dramatically different circumstances in which they found themselves.

The document, entitled ‘The Road Ahead’, set out how the Family Court’s caseload should be dealt with, prioritising the most urgent matters and clarifying how the transition to remote hearings should take place for the remainder

https:// www.judiciary.uk/announcements/the-family-court-and-covid-19-the-road-ahead/.

There was, perhaps naturally, an impact on many of those families who needed to turn to the Court for help.

As figures released by the Ministry of Justice make clear, almost every type of case took longer to conclude during and in the immediate wake of lockdown https:// www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2021/family-court-statistics-quarterly-july-to-september-2021.

Now, however, as the final coronavirus restrictions are removed, Sir Andrew McFarlane has given a fresh view of how the Family Court, families and lawyers should handle those remaining delays https:// www.judiciary.uk/publications/a-view-from-the-presidents-chambers-march-2022/.

In a stark summary of the current situation, he has explained that the “volume of outstanding work in the Family Court is at an all-time high”.

Some areas of its operations have, in fact, “exceeded their capacity to deliver”, while the backlog of work “remains stubbornly high”.

The answer, says Sir Andrew, is for all involved to do what they can to increase efficiency – or, as he has put it, “make every hearing count”.

It is a position with which I completely agree.

We should be doing everything that we can to ensure that the lives of the adults and children who ask the Family Court for assistance are not negatively impacted by the kind of systemic delay which Sir Andrew describes.

I believe, though, that no-one should be under any illusion that the problem is simply down to the horrid effects of the pandemic on people and procedure.

Official statistics show that the Family Court was facing an increase in work long before the first individuals were infected with Covid-19.

Applications for Child Arrangement Orders, which determine with whom a child should live after its parents split up, rose by 46 per cent between 2015 and 2020.

The number of parents applying for Specific Issue Orders – concluding discussions about which school a child might attend, children’s surnames or a parent’s ability to take a son or daughter on holiday – went up by 72 over the same period.

Those increases are bound to create a strain on available court resources.

Some of the caseload should arguably not make it to court. Sometimes, parents who might have been made the subject of orders return to court to argue about the ways in which those orders might be implemented or indeed even interpreted and those discussions can themselves take many months to deal with.

We have already seen courts trying to get tough. For example, they have made use of orders – under Section 91 (14) of the 1989 Children Act – which are designed to limit unnecessary or disruptive applications.

Certainly, I think that everyone has lessons to learn from the pandemic. Remote hearings have proven themselves to be incredibly helpful in dealing with some of the more administrative elements of cases confronting the Family Court.

There are also resources, such as the various forms of Alternative Dispute Resolution (ADR) and the new network of parenting co-ordinators https:// www.parentingcoordinators.co.uk, which offer a less stressful means of tackling family disputes without the need to take up valuable court time.

Sir Andrew McFarlane’s urging to increase efficiency is sure to be warmly welcomed by families and professional practitioners alike.

The core of his recommendations – and at the heart of my efforts and those of my colleagues at Hall Brown – is the need to strike a balance between access to justice and the effectiveness of whatever hearings are required.

Delays of any sort only risk impeding the ability of children, in particular, to adjust to new arrangements and move on with their lives.