Plain English, workload pressure and video hearings: The last week in family law

A Family Court judge has been praised for writing a judgment
without legal jargon, so that it could be more easily understood. Her Honour
Judge Lynch, sitting in the Family Court at Leeds, was handing down the
judgment in a case in which the local authority were seeking care and adoption
orders in relation to a little boy who was not yet one year old. She began the
judgment by explaining: “I am going to try to write this judgment in a way that
will make sense to [the parents], given they have some problems with
understanding, so it may not sound as legal as some judgments.” Whilst not
agreeing with the local authority’s plan, the parents did not oppose the local
authority’s application, simply leaving the matter to Judge Lynch to decide.
Judge Lynch found that the child would not be brought up properly and safely if
he was living with the parents, and she therefore made a care order and a
placement order authorising the local authority to place him for adoption. She
also directed that the judgment be released to the adopters, so that it is
available to the boy when he is older, and he can make sense of his early life.

The new President of the Family Division Sir Andrew
McFarlane has published his first View
from the President’s Chambers
, a regular update on his work, and matters
relating to the family justice system. In it he said that his number one
priority was the need to address the unprecedented and unsustainable volume of
cases in the system, caused by the high volume of new children cases over
recent years. This, along with a substantial rise in the proportion of
litigants in person resulting from the legal aid cuts, has led to huge workload
pressure, which is affecting the well‐being of social workers, lawyers, judges
and court staff. He said that addressing the underlying causes would take time,
but meanwhile “some corners may have to be cut and some time‐limits exceeded”,
as “to attempt to do otherwise in a situation where the pressure is sustained,
remorseless and relentless, is to risk the burn‐out of key and valued
individuals in a system which is already sparely manned in terms of lawyers,
court staff and judges.” He suggested, for example, that limits be placed upon
court hours, and the latest time in the evening and the earliest time in the
morning, when it is acceptable to send an email to another lawyer in a case or
to the court.

The Association of Lawyers for Children has published a
report looking at the views and experiences of advocates on practices in 61
settlement conferences, which have been piloted by the Ministry of Justice
since 2017. Settlement conferences are intended to help parties in children
cases to resolve matters by agreement, with the assistance of the judge. The
report’s findings do not support a roll out of the settlement conference
procedure in its current form. The reasons for this included variations in
approach by judges and courts, concerns as to whether the procedure was fair,
pressure on lay parties to agree to a suggested order, and the power imbalance
between lay parties and the judge, by virtue of the latter’s status and
position. Further, many of the advocates felt that a similar result could have
been obtained within the existing court procedures, if only more time was
allowed.

And finally, it has emerged that the Family Courts are to
test video hearings. The news came as the judiciary published the outcomes of
its Judicial Ways of Working consultation, which received responses from or on
behalf of 10,000 judges, panel members and magistrates, setting out their views
on proposals to modernise and reform the courts. The President of the Family
Division summarised the position in relation to the Family Court. He said that
whilst some judges expressed concerns about the appropriateness of fully video
hearings (‘FVH’), some felt that they could be used for uncontested cases.
Accordingly, he said, a test of FVH for first directions applications in
financial remedy cases had been approved, “given that they are, in the main,
principally dedicated to case management using pre-prepared documents”. He made
clear, however, that currently there was no specific proposal to expand FVH in
the family jurisdiction beyond this test, adding: “Specifically, and subject to
the evaluation of the test, it is felt that FVH will not normally be
appropriate for contested cases involving the giving of oral evidence,
multi-party cases, cases concerning litigants in person, and/or cases
concerning children.”