McFarlane tells family judges to curb out-of-hours hearings


McFarlane: Extra hearings not tenable

The president of the Family Division has told judges and lawyers to stop the increasing practice of holding virtual hearings outside of normal court hours, citing wellbeing concerns.

Sir Andrew McFarlane said “widespread reports” suggested that some additional hearings were starting as early as 8am or as late as 4.30pm.

“I am clear that this development, laudable though the reasons behind it plainly are, is not tenable in terms of the human resources and well-being of all concerned. What is achievable in a sprint, is not sustainable in a marathon.”

In his latest public statement, which considered the impact of the latest lockdown, Sir Andrew stressed that judges should only arrange a hearing outside of the usual 10am to 4.30pm sitting hours as an “exceptional occurrence” and be limited to no more than a 30-minute extension to the court day.

“Cases which are genuinely urgent will, as they have always been, be allocated any necessary hearing time,” he added.

More broadly, the judge said the degree to which work was now taking place “without any regard to the confines of a normal working day has become a matter of very significant concern in the context of our individual and collective well-being”.

He has asked each designated family judge to reinforce the need for practitioners to adhere to the local wellbeing protocols, which include expectations of when it is, and is not, acceptable to send/receive emails or to expect a response.

“Judges should question professionals who are seen to have been sending messages at times outside acceptable hours. There should be no expectation that email traffic will be read and responded to in the evening, overnight or at weekends.”

Sir Andrew said the pressure of work in the courts, and the backlog of cases, were matters that concerned the system as a whole.

“They will not be resolved by individuals working beyond reasonable capacity, but by increased resources and strategic, system-wide changes in the way cases are dealt with.”

This has been happening since the first lockdown last March, he said, with more resources available “in terms of equipment, staff numbers and judge sitting days” and system-wide changes being introduced in public law children cases following the launch of the public law working group report next month.




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