Well-being and the family courts

On 15 September 2020 the new designated family judge at the Central Family Court (CFC), HHJ Lynn Roberts, issued a statement focusing on changes to the CFC well-being policy generally, and introducing some changes which are specific to the running of the court during the Covid-19 pandemic.

HHJ Roberts was appointed as the designated family judge (DFJ) in the CFC in August 2020 after HHJ Robin Tolson QC stepped down. When he announced his resignation, HHJ Tolson said that:

“You the court users will glimpse, perhaps more than glimpse, some of the difficulties we – judges and staff alike – have faced here in court and behind the scenes at the business end of a family justice system which, if I may offer a personal view just for a moment, seems increasingly incapable of meeting the needs of its users: not enough time or money for the necessary and deserving; and a tendency to concentrate resources on the unnecessary, complicating the simple and pandering to agendas which are at odds with reality or a diversion at best.”

This is a sentiment that will undoubtedly resonate with many family law professionals. There is an unprecedented workload in the family justice system resulting in immense pressure on finite resources and capacity. Additional work is met by the same number of barristers, solicitors, social workers, CAFCASS officers, court staff and judges, who must operate and adapt within a shifting remote working landscape. Now more than ever legal professionals are asking whether the family justice system is at or nearing its breaking point.

The pressures have been intensified and, in many ways, exacerbated by the ongoing Covid-19 pandemic. The President of the Family Division, Sir Andrew McFarlane, has shown tremendous leadership and insight into the importance of well-being within the family court system. He issued a 15-page document, The Road Ahead, in June 2020, which dealt with many of these issues and recognised that there is an enhanced need to consider well-being during the pandemic. Whilst it has led to benefits for many of us, remote working has undoubtedly placed additional pressures and stress on us all, as well as the judiciary. It has also precipitated an urgent up-scaling of IT skills across the board and with it some interesting practical modifications to the conduct of hearings and advocacy styles.

It is against this backdrop that we welcome the new guidance from HHJ Roberts. As with The Road Ahead, it is encouraging to see primacy being given to well-being as part of the healthy function of the family justice system.

The central tenet of HHJ Robert’s new guidance is that we should all be more mindful of each other’s well-being, and avoid apportioning blame when others have not deliberately got things wrong. The guidance also highlights the importance of litigation being focused and concise, with issues being narrowed wherever possible.

The guidance goes on to list specific well-being policy measures, such as limiting court hours, ensuring lunch breaks and keeping position statements concise.

This is another sensible and positive round of well-being guidance, which in theory should improve things for everyone working in the system.

However, on a practical level there is still undeniably a long way to go. Unless and until the family court system is properly resourced and staffed, it is difficult to see how there can be a substantial change for the better, particularly while we are in the throes of Covid-19.

In the last couple of weeks alone, the writers have had some very challenging experiences at court. At Raydens, we had a Circuit Judge refuse to hear our client’s listed application on the basis that they had not received the e-bundle. The bundle had in fact been sent to the court by email and then directly to the relevant judge and her clerk. When the judge located the bundle in her inbox, she was critical of the fact that this had been sent in three sections. This had happened because the HMCTS IT system had rejected the original bundle on the basis that it was over 25MB in size. This seems to be a common occurrence and an example of administrative friction within the system.

On another case, the judge refused to read counsel’s position statement on the basis that it was very slightly over the page limit. The judge in that case was also unable to locate the e-bundle and threatened to adjourn the hearing. This was in the context of the court having already vacated the matter previously.

These types of regrettable, and hopefully exceptional, experiences jar with the well-being guidance issued by HHJ Roberts and others. It can all too easily seem as though we are frequently caught in a vicious circle, where frustrations are being vented as a result of administrative shortcomings and under-resourcing in the system.

It seems unlikely that there will be any great reduction in the volume of work within the system in the foreseeable future and nor should that necessarily be the goal in itself. What is really needed is proper funding and investment in the system. HHJ Tolson was right when he said that there is “not enough time or money for the necessary and deserving”. In the meantime, it is incumbent on us all to do our bit and heed the sentiments of the leadership judges, including HHJ Roberts and the President, to treat one another with patience and respect, recognising that to some degree or other each of us is finding our way in uncertain times.