Weekly Family Law Update July 20, 2021

Remote hearings, Cafcass and FDACs

All of the news this week comes from the President of the Family Division, who has provided an update upon recent developments in the family justice system.

Pandemic response

The President has expressed his respect for the way in which the family courts responded to the pandemic, moving almost on one day from normal to remote working.

He says that we have done much more than simply ‘carrying on’. More sitting days were taken up by the Family Court in 2020/21 than in any previous year. Cases heard in the current restrictions take longer to resolve, he said, but because of this additional sitting time, we have for some time been matching the pre-COVID level of volume in public children cases, albeit that our ability to keep up with the high level of private children work has fallen short.

Recovery from the pandemic

The President says that for some months now he has cautiously been considering how courts should approach the hearing and dispatch of Family work once lockdown is entirely over and we can return to totally unrestricted working. He says that all are agreed that the ‘new normal’ will not be as it was in February 2020; the question is just how, and by how much, it should change.

However, there will be no new guidance immediately lockdown ends. In the meantime, judges and magistrates will continue to work in, or return to work in, court buildings where it is safe for them to do so, whether or not particular hearings are remote.

Cafcass overstretched

The President reports that the Children and Family Court Advisory and Support Service (‘Cafcass’), the organisation that looks after the interests of children involved in family proceedings, has reached its workload capacity.

He says: “A combination of a higher level than normal of adjourned cases since last March, and the continued rise in private law applications, has led to a position where the capacity of Cafcass in England to take on and allocate individual cases to specific workers has reached the upper limit of what, for various reasons, is considered to be tenable and safe.”

The President states that discussions are ongoing at a national level to consider what structural, administrative and other options may be available to alleviate this situation, but meanwhile says that the input of a Cafcass officer should only sought in a particular case when it is necessary to do so.

Otherwise, he says that the amount of time afforded to court hearings should be reduced. This can be done by limiting the issues to only those which it is necessary to determine to dispose of the case, and for oral evidence to be cut down only to that which it is necessary for the court to hear.

Care cases going digital

The courts service is developing a digital system which will provide a paperless platform on which the procedural stages of all child care cases are, in future, to be conducted. The system has now been established at each Designated Family Judge centre in England and Wales, supported by a national Service Centre based at Stoke on Trent. 93 of the 173 local authority users have joined up to the system.

The President says, however, that the proportion of cases that are online is, in most authorities, still low. Nevertheless, we are getting close to the point when it is time for all involved to commit to the system, and for its use to be ‘mandated’ (that is for all new applications to be issued online rather than on paper at the local court).

Drug and alcohol courts go nationwide

Lastly, the President says that it is his ambition that by the time he steps down as President in June 2024 there will be a Family Drug and Alcohol Court (‘FDAC’) in operation in every area of England and Wales.

As of April 2021, there were 14 FDAC teams servicing 35 local authorities and 20 family courts.

FDACs are an alternative family court for care proceedings. They are specially designed to work with parents who struggle with drug and alcohol misuse, and they try to solve the problems that have led the local authority to bring the parent to court. FDACs have a good record of ensuring that children remain with their parents.