Family courts “failing” McFarlane’s wellbeing challenge


Delahunty: Courts’ efforts to date are the exception

Many courts have not responded to the encouragement of the president of the Family Division to lay down acceptable working practices so as to improve wellbeing, a leading QC has claimed.

Professor Jo Delahunty QC said Her Honour Judge Roberts, designated family judge, has issued a wellbeing practice note in Essex and Suffolk, while His Honour Judge Tolson last month put out a draft directive for the Central Family Court.

The latter says listings should not take place before 10am or after 4.30pm, courts should rise between 1pm and 2pm and barristers would not be obliged to reply to emails after 6pm.

Writing in the Bar Council’s magazine, Counsel, Professor Delahunty – who practises from 4PB and is a recorder – said: “Most welcome as these efforts are, they are an exception. We have not seen similar, let alone coordinated, initiatives across the UK of courts taking up the President’s invitation.”

She cited this recent tweet by a “senior barrister”: “4 day public law children case. At 4pm on day 3, Judge gives everyone 5 minute break before expecting a parent and his partner to be cross examined until 6.30pm on hottest day of year, switches off aircon, refuses to open any windows. Not acceptable for anyone.”

President Sir Andrew McFarlane, who has made wellbeing a priority since taking over the role, has encouraged discussions between the legal profession and each designated family judge to agree parameters for acceptable working practices, such as the earliest and latest times advocates should be expected to deal with emails.

He has said he hopes to use these regional agreements to create a national template to identify “the bottom line expectations that should apply to all court centres”.

The Criminal Bar Association has called on the senior judiciary to start a similar initiative in the criminal courts.

In a Twitter thread yesterday on the impact of court sitting late, the Western Circuit Women’s Forum said the feedback it had gathered showed “a mixed picture”, and argued that “with more communication and consistency, and [fewer] assumptions, the challenges of sitting late can be minimised, if not completely removed”.

The forum cited several instances of women being put in difficult positions with childcare as a result of courts sitting late and not considering the implications for counsel.

However, there was one account of a female circuit judge who, when it was apparent the court would need to sit until at least 5pm, asked whether the advocates were able to stay that late and had any personal responsibilities to take care of.

The barrister said: “She asked whether we needed to make any telephone calls. I don’t think I have ever had that experience in 20 years and it was absolutely fantastic that she took the time to think about the impact on the advocates of sitting late.

“As it was, we did not finish until 5.20pm… she very kindly asked us to do just bullet point submissions – conscious of the pressures on us to fit these in around the job.”

Professor Delahunty also complained about solicitors using email to deliver case evidence.

“Yesterday, for example, I received an email with the heading ’FYI’ and just the client’s name. No text in the email, just a composite PDF attachment of a hundred pages or so containing critical (and time-sensitive) information such as an opposing parties application to instruct a psychologist to conduct a risk assessment of our client, a controversial ‘support’ plan, statements of evidence: all mixed up with pretty irrelevant correspondence.

“One only knew what was contained by opening up this blind attachment and ploughing through it. There were no instructions, not even a resume of the content. That is not acceptable. It risks the client’s case. It terrifies me that I might miss something or a deadline.”

The QC added that to receive a ‘counsel’s brief’ detailing what the client’s instructions are on the evidence “is now a rarity”.

She said: “I try to insist on it because I have the seniority to do so. Junior members of the Bar often simply have evidence, served on the solicitor, passed on to them by email akin to a post box service.

“We know solicitors have so much to do to keep a legal aid practice going and have to process a high volume of work just to create a viable profit margin. All sides of the family justice system are having to cut corners given the pressures they are under.

“This is not sustainable without risking miscarriages of justice, let alone retaining valued members of each profession.”

In June, Professor Delahunty warned that legal aid lawyers working on cases involving child death, sexual abuse, and similarly horrific events, risked their own mental health.




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