Weekly Family Law Update October 24, 2020

A barrister prohibited from acting, remote hearing success and the latest Cafcass figures

Barrister prohibited from acting in children case

The High Court has dismissed an appeal by a father involved in proceedings concerning arrangements for his daughter, against an order prohibiting his barrister from accepting further instructions from him in those proceedings.  The court had made the order because of acrimony between the barrister and the mother, which the court said threatened to become an issue in the trial, which would divert the focus from the central issue, which was the welfare of the child.

Hearing the appeal Mr Justice MacDonald said that whilst such an order should only be made in exceptional circumstances, he was satisfied that it could not be said to have been wrong. He went on: “…in my judgment the learned Judge was justified, on the evidence before him and having exercised appropriate caution having regard to the rarity of the order sought, in concluding that this was an example of the extremely rare cases in which it is appropriate for the court to direct that counsel should not continue to act for a party to proceedings because their continued participation would lead to a reasonable lay apprehension of unfairness, creating a real risk of counsel’s continued participation resulting in the order made at trial being set aside on appeal.”

Accordingly, the father’s appeal was dismissed.

Remote hearings clear backlog in some family courts

The President of the Family Division Sir Andrew McFarlane has said that the use of remote hearings via telephone and internet links has been so successful in some courts that the backlog of hearings has been cleared.  Speaking at a conference on the future of family practice online organised by the association of family lawyers Resolution, he said: “We’re in a position now where some of the courts haven’t got a backlog of cases. Others have but they’ve got a plan for dealing with them, and people are just cracking on and getting through the work.

“We are sitting and have sat more days in family than ever before despite the fact we haven’t had courtrooms.”  However, he said, remote working was more stressful than undertaking cases in the ordinary way, and that: “To face engaging in this way for another six months, it saps your morale, particularly if you are already knackered by what you have given so far.”  He also explained that when the pandemic is over he would fight any suggestion by policy makers that family cases should remain online, saying: “any hearing that involves the family engaging directly with the judge or magistrate, we must get back to having those hearings face to face in the courtroom as soon as we can”.

Latest Cafcass figures for children cases

The latest figures for public law (including care) applications and private law demand (mainly child arrangements applications), for September 2020, have been published by the Children and Family Court Advisory and Support Service (‘Cafcass’), the organisation that looks after the interests of children involved in family proceedings.  In that month the service received 1,499 new public law cases, featuring 2,335 children; this represents an increase of 7.5% (104 public law cases) and an increase of 5.7% (125 children) on the 1,395 new public law cases received and the 2,210 children on those cases in September 2019.

As to private law demand, Cafcass received 4,262 new private law cases in September 2020, which is 540 cases (14.5%) more than the same period in 2019. These cases involved 6,566 children, which is 835 (14.6%) more children than September 2019.  These increases may be related to a previous drop in demand, in the early months of the Covid-19 lockdown.