Lessons to be learned before assessing the road ahead
Alex Aspinwall 

As we enter February 2021, a faint light appears to have emerged at the end of a long Coronavirus shaped tunnel. With the vaccine rollout continuing apace, many of us can now contemplate returning to some sort of normality where meetings are no longer conducted from the comfort of a well-disguised set of pyjamas. Indeed, it is with some sadness that I will no longer be able to write these pieces with the Cat sprawled across my desk offering both company and words of advice when they appear to be needed. 

It is in this light that the President of the Family Division offered some thoughts on the ‘road ahead’ for the for the Family Division in 2021. This article will summarise the key take-home messages for practitioners and some of the lessons we can learn from conducting remote hearings during the last 11 months. 

Expect no changes soon 

The President begins his report by stating that practitioners should expect no change to the remote hearing regime in the coming months. Whilst the vaccination rollout has proven effective, in-person Court hearings will not be practicable until a majority of the population have been protected and this remains some time away. 

As such, it is important for practitioners to remember that the Family justice system remains under pressure from a growing backlog of cases with a proportion even predating the pandemic period. As a result, it is more important than ever to narrow the issues in dispute to those crucial to the fair disposal of the matter. This is something that opposing practitioners and parties should seek to do at the earliest possible opportunity. 

Here, the President offered guidance in his June 2020 report that recommends practitioners pose the following questions before deciding how to conduct litigation: 

  1. What issues can be agreed? 
  2. Of those not agreed, which are necessary for the Court to determine? 
  3. Can those issues be determined on paper? 
  4.  If not, which issues require an oral hearing?
  5. What evidence will be required to determine those issues?
  6.  How can this evidence be called/structured in the minimum amount of time that allows determination of the issue? 

It is suggested that, given the backlog will take months/years to clear even after we return to in-person hearings, practitioners should use these questions as a standard basis for family litigation moving forward. This encourages a collaborative approach that may encourage settlement on ancillary issues. This, in turn, may lead to better communication between parties and could see complete disputes settling earlier. This would, inevitably, save parties time and money.

Ensuring engagement with remote proceedings 

One of the most pressing concerns surrounding remote hearings is the extent to which lay parties engage with the judicial process and the consequential impact on their access to justice as a whole. 

These concerns were highlighted in the Family Justice Observatory 2nd report which is cited extensively in the President’s comments. 

The guidance in Chapter 8 of that document merits consideration and, as the President invites, we should reflect on our own practices with the objective of ensuring that clients feel involved and present in their own hearings. The report recommends practitioners consider the following steps for virtual hearings: 

Before the hearing 

  1. Ensure you have spoken to your client before the meeting begins and explain to them how the technology will work.
  2. Explain how the court’s role is essentially the same despite the fact they will not be in a physical courtroom and, as such, the client’s behavior should reflect this.
  1. Try the technology first. This would include ensuring the PDF bundle is available and navigable for the client.

During the hearing

  1. Ensure hearings start at the appropriate time.
  2. Introduce all the individuals on the call and make their roles clear.
  3. Give the client an opportunity to speak early on and at regular intervals to ensure they are remaining focused on the hearing.
  4. Maintain a separate and open line of communication with the client during the hearing. This may be via an instructing solicitor.

The key take-away is to remember that clients may have limited understanding of legal ‘jargon’. Coupling this with a remote hearing, and no doubt endless sources of distraction in the home, practitioners have to work doubly hard to ensure their client is engaged with the process and understands what is being said/done on their behalf. It is suggested that this enhanced focus on client engagement should be continued beyond the Covid-pandemic and can only benefit future litigation on the whole.

Working hours and self-care

It is undoubted that working from home has permitted some practitioners to undertake a greater volume of work. Whilst it may be easier to log into a different zoom call than driving to a second conference, this should not result in practitioners taking on vastly increased amounts of work in an attempt to ‘clear the backlog’. Indeed, the strain on the Family courts will not be relieved by individuals working beyond their normal capacity.

Instead, the Family Division has been steadily introducing strategic changes to the way in which litigation is conducted in order to relieve this obvious pressure. In this light, the President advises that every practitioner consult their DFJ area ‘well-being protocol’. Amongst other things, these documents set out when it is acceptable to send case documents/expect a response from both clients and other legal professionals. Judges and practitioners are asked to closely consider these protocols and amend their practice to reflect this emphasis on individual well-being.

The President re-emphasises that the long-standing practice of Court sitting from 10.00am to 4.30pm remains good. Whilst judges and practitioners will no doubt work both before and after, it is not appropriate to conduct hearings outside of these times, remotely or not, unless there is a genuine need to do so. Indeed, doing so is counterproductive both in terms of the effect on Court staff and the client who may be deprived of valuable conference time with their advocate. Whilst sitting as early 08.00 may be laudable, it is not sustainable.

It is important to remember that the pandemic has been a strain on us all. We must be mindful of the additional toll placed on us as practitioners when dealing with stressful and time-demanding matters such as those experienced daily in the Family Division. As the President notes, we are engaged in a marathon, not sprint, and need to observe sustainable working practices that reflect the mental effects of the pandemic on both legal professional and client.

Conclusions

The main take-away from the President’s recent advice is one of client engagement. Practitioners must try, more than ever, to conduct litigation with a focus on ensuring the client remains present and engaged throughout. Whether this be via external communication or providing opportunities to speak, it is a message that cannot be overemphasised.

Linked to this, practitioners need to give serious consideration to their own well-being and that of Court staff attempting to clear the growing backlog of cases in the Family Division. Whilst individually taking more cases may seem the obvious way to rectify this, the situation will only improve with structural reform to the way family litigation is conducted. Taking on an extra case, when already stretched, does not contribute to this.

It is clear that the ‘new normal’ will persist for some time to come. What is less clear is how we navigate our way back to normality both as a society and Family Division. We eagerly await the President’s guidance on this, presumably coming in the next few months, even if this does mean the Cat will have to return to entertaining herself and I may have to swap pyjamas for a suit and tie.

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