Response to HM Courts and Tribunal Service on the Flexible Operating Hours Prospectus

Response to Key questions
Our response focuses on the Family Court and the fifth pilot model in Manchester Civil Justice Centre.

1. How do you think we could improve the pilots described above? Are there types of work we’re suggesting which should not be included in the pilot, or types of work we haven’t considered which should be?

Resolution has had and expressed concerns in principle from the outset about the pilots and the use of court rooms for family court sessions outside of normal court hours. The potential disproportionate impact on those parties and legal professionals with young children or other caring responsibilities, and on more junior (and likely younger) legal professionals and those working under legal aid contracts must be fully considered.

Those concerns remain, for example in light of the child care responsibilities of parents whom our members represent (or involved as unrepresented parties) in all types of family proceedings. In our members’ experience, parents generally prefer to use professional processes to resolve their family disputes during school hours and taking account of travel times to enable them to meet child care needs. The assumption that a ‘pain point’ for those attending court can be being required to take time off work is currently simply that i.e. an assumption.

We don’t consider that there is any particular type of family court work which would clearly be suitable for undertaking outside normal court sitting hours.

FDAs in divorce finance cases might be more suitable than other types of work. FDRs may be more problematic as they can take half to one day including negotiations.

We have welcomed the holding of Local Implementation Team discussions involving legal professionals. We had understood that, if a pilot must proceed, money work i.e. FDAs and FDRs was
considered by the LIT at the Manchester Civil Justice Centre to be the most suitable type of work to list as there is less of a security risk than listing FHDRA work; that neither private nor public children related hearings would now be included in the pilot. However, the prospectus suggests otherwise.

It is right that Cafcass would have to be present for there to be effective FHDRAs.

It is also the case that parents in care proceedings are often vulnerable adults or may be children themselves. It would be important to understand whether their attendance and participation at hearings of emergency local authority applications would be reduced if listed in the pilot court and according to how late in this session they are listed. This would clearly not be a desirable outcome.

Subject to full security arrangements being in place and only on that basis, there may be merit in having an appropriately ticketed judge available after 16.30 for those applicants wishing to voluntarily use/opt in for occasional urgent ex parte non-molestation orders. There would be little point if sealed orders could not be made available by the court at the same time.

Emergency family applications already effectively dealt with at the end of the court day at Manchester should not be affected. Existing practices and any pilot should be clearly differentiated
and separately evaluated.

2. How could we improve the way cases are listed in order to make the pilot work more effectively, and limit any negative impacts for legal professionals?

Much more information is needed on how the availability and other constraints for vulnerable participants in the family court will be considered through listing and in the context of listing for any

In our view, the Scheduling and Listing project is key for legal professionals and could be far more beneficial to all concerned than these pilots. That project would surely better inform making any
flexible operating hours pilot work at a later time.

Whilst the prospectus says there is an intention that no lawyer should have to work longer hours than at present and measures will be put in place to safeguard against that risk, no details of those
measures are set out to show how those longer hours will be avoided.

We note that it is proposed that a judge would sit 14.00 to 16.00 (or 13.30 to 15.30) and 16.30 to 19.00. We assume that all cases would be listed either at 14.00 or 16.30. Our members report that in practice matters are not necessarily settled or heard during the course of the session for which they are listed. As mentioned above FDRs in finance cases can take half to one day. Judges and
other participants are already saying late to deal with overrun beyond the usual end of the court day. There will inevitably be overrun beyond the session ending at 16.00 and the additional session ending at 19.00.There would therefore still be the potential for a legal professional to attend the equivalent of a whole usual day at court from 12.30/13.00 to 19.30/20.00 (undesirable in that is highly unlikely that a legal professional will only begin their working day at lunchtime).

Listing in itself will not prevent legal professionals from working an extended day. But where a legal professional is involved in any matter listed in the morning session in any court, another matter involving them should clearly not be listed in either afternoon session in the pilot court (or vice versa). It should be clear how to notify the court and change the listing if this does occur.

In family cases more judicial continuity would generally improve the way cases are listed, and should be taken into account in listing within any pilot and for the purposes of listing future hearings in the same case outside the pilot.

3. All the pilots offer the potential of at least 50% extra capacity in a court room. While still achieving this, are there any variations to the sitting patterns proposed which you think would work more effectively?

It is difficult to identify anything for the Manchester pilot. We are pleased that there will be no listing before 10.00 there as in practice the working day at court will begin at 9.00 for those involved
in family cases listed at 10.00.

4. What other changes to the pilot proposals could make participation in the pilots easier for legal professionals?

We remain concerned in principle for legal professionals with child care and caring responsibilities, and the impact of the proposals on their work life balance and family lives, not least because nearly three quarters of our members are women.

It is asserted that the pilots are based on people working different but not extended hours in that they will not be expected to attend court more or asked to work longer hours. That may be the case for those employed, for example, by HMCTS but this simply will not be the case for those legal professionals working in private practice and who in many circumstances will receive no direct remuneration for working those hours.

Whilst there will be more ability to opt-out of the Manchester pilot for family work, the devil will be in the detail and much will depend on how the opt-out procedure works in practice. There will need to be real flexibility to opt-out for those with children or caring responsibilities.

We don’t consider that the issues around opt-out which arise for legal professionals have been fully considered, particularly as to whether opt-out raises a potential conflict of interest between a legal professional and their client. The choice of opt-out would rightly ultimately be for a party, not their legal representative, so opt-out does not automatically make participation in the pilots any
easier for legal professionals. Any evaluation should collate and analyse the volume and reasons why users wished to opt out.

We support the Law Society’s representations on legal aid in their response to the prospectus and their recommendation that the MoJ/HMCTS work with the LAA to agree a reasonable uplift in fees for the work, which should be available to all practitioners who are subject to the flexible operating hours pilot by virtue of their office location.

5. Are there any other considerations for flexible working opportunities for professionals which could be included in the design of the pilots (e.g. legal professionals limiting availability to only morning or afternoon working, condensed hours etc.)? How could you see this working?

In practice our members do not only attend court hearings. They have many professional responsibilities including working outside of the court room and court sitting hours, both in and away from the court building, to ensure that as many issues are narrowed and settled as possible and all court hearings are as effective as possible. They often do not have the benefit/opportunity of flexible working arrangements, condensed hours or split shifts. We cannot envisage a new operating model that would not simply extend the length of most family practitioners’ working days (which may already involve court hearings extending outside of usual court hours).

Additional pilot models
Question 5 – A Civil/Family Court and Tribunals mixed jurisdiction model? 

We would ask that HMCTS publish the findings and evaluation of the recent pilot in Manchester.

Our main concern is that Family Court facilities and capacity are maintained and improved.