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McFarlane clears way for more remote family hearings

McFarlane: Length of hearings and rulings must fall

The president of the Family Division has cleared the way for more remote hearings, including those where parents and children appear as witnesses, by revising the guidance for judges.

Warning of a potential “surge” in child protection cases, Sir Andrew McFarlane said he wanted to see “a very radical reduction in the amount of time” the courts gave to each hearing.

The president said that in the early weeks of the lockdown, most contested fact-finding or final welfare family hearings were adjourned, because it was “hoped by many that normal working would resume relatively soon” and the delay would not be great.

“It now seems sensible to assume that social distancing restrictions will remain in place for many months and that it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021.”

In a document called The Road Ahead, Sir Andrew said the “overwhelming view of the judiciary and legal profession” was the Family Court did not need further guidance on case management.

However, the joint letter he sent to judges on 9 April with the Lord Chief Justice and the Master of the Rolls needed to be revised.

The letter stated that family cases where parents or other lay witnesses gave evidence were “unlikely to be suitable for remote hearing”.

Sir Andrew said this phrase should be changed to “may not be suitable for a fully remote hearing”.

Judges should consider whether it was possible to hold a “hybrid hearing”, with one or more of the lay parties attending court in person to give evidence, or a fully attended hearing.

“Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child’s welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties.”

Sir Andrew warned that, save for a dip in the first weeks of lockdown, the volume of applications being made in private and public law children cases had “continued at pre-Covid rates”.

He went on: “Applications for domestic abuse injunctions have either remained at usual levels or have, in certain inner-city areas, significantly risen.

“It is anticipated that, once social services are able to function more normally and once more children come out of lockdown and return to school, the volume of child protection cases may surge.”

In a section on time management, Sir Andrew said remote hearings were “likely to be the predominant method of hearing for all cases, and not just case management and short hearings”.

Adjourning cases “indefinitely or for a period of many months” would not be an option, particularly for time-limited public law children cases.

“If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing.

“Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.”

Sir Andrew said judges should consider whether giving a “short judgment” was sufficient. In this case, they did not need to give “a detailed recital of the evidence, save for those key elements which support the court’s findings and decision”.

In his ‘Covid case management checklist’, Sir Andrew said remote hearings should be conducted by video link where possible, and not by telephone.