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Sir Andrew McFarlane addresses Resolution Conference on ‘Interesting Times’

Sir Andrew McFarlane, the President of the Family Division, addressing the Resolution Conference on 5 April, took the opportunity to offer "an update on the major changes which are currently being developed and which will have a major impact on every aspect of family law during the next twelve months".

After discussing the implications of Brexit and the advice provided to practitioners, he turned to the continuing problems caused by the increasing caseload in the Family Courts. Whilst, he noted, judicial resources assigned to 'Family' work next year will be greater than those assigned to the Crown Courts, he said that growing increases in workload – across all the work done by family lawyers – demands radical reform to working practices and processes. In this regard, four substantial projects are in train to (a) digitise the entire court system, (b) reform practice in public law child cases, (c) reform practice in private law children cases and (d) establish the Financial Remedies Court.

Sir Andrew said that since mid-2018, when litigants in person became able to issue divorce petitions online, some 35,000 have done so. This represents 55 per cent of divorce petitions issued by litigants in person during the past ten months. Compared to an error rate of 40 per cent detected in paper divorce petitions, the error rate for online petitions is currently 0.4 per cent; and 84 per cent of litigants using the online process have indicated satisfaction with the process.

The pilot scheme for solicitors using online divorce has recently started and work is also in train to release the remaining parts of the divorce process, namely decree nisi and degree absolute, in the next few months.

By the end of 2019 it is anticipated that the vast majority of divorce proceedings will be conducted online, or, if paper-based, will be scanned and converted to online, and will be administered remotely through the Courts and Tribunals Service Centres in Stoke.

Sir Andrew acknowledged the "unhappy state of affairs" arising from the centralisation of the regional divorce centres. He stressed that in his dealings with HMCTS he has emphasised the importance of the processes in Stoke standing up and working efficiently and without the delay encountered with the Regional Divorce Centres.

Turning to the Financial Remedies Court Pilot which is underway in Birmingham, he highlighted one of the benefits from the new bespoke court. He said:

"For as long as I can remember practitioners in ordinary cases ... have cried out for authoritative guidance as to the general approach, or even the "going rate", applicable in such cases."

Active consideration is now being given to harnessing the new computerised process and combining this with a revised Form D81 so that researchers can harness the data from each case in order to produce schedules or tables identifying the preponderant outcome in typical cases across a range of set variables. The goal is to provide family lawyers with a resource similar to that enjoyed by personal injury litigators when assessing the quantum of compensation following physical injury.

With regard to the sustained increase in public law applications by local authorities, Sir Andrew specified three three key areas in and around the court process that might benefit from closer scrutiny. These are pre-proceedings process undertaken by a local authority before an application under Children Act 1989, s 31 is issued; the need to reclaim and reinvigorate CA 1989, s 20 so that where it is appropriate for a local authority to accommodate children with the agreement of their parents; and the question whether the rise in orders made under which a child, at the conclusion of care proceedings, either returns to parents or to another family member indicates that the threshold for intervening in the family has fallen to a lower level than had been the case and/or whether the 26-week deadline might be encouraging courts to make a final order when the child's welfare would otherwise require a further period of assessment under continued interim orders.

The President reported progress and said that a thirty-strong working group, under the chairmanship of Keehan J, expects to publish an interim report on the potential for reform in relation to public law children cases in early May.

On private law children cases, Sir Andrew informed delegates that Teresa Williams, the Director of Strategy at CAFCASS, has analysed available data to identify the following broad cohorts:

These figures, he said, which indicate that around 38 per cent of couples need to go to court to resolve disagreements over how they should care for their child post-separation, are a far cry from the previous comfortable urban myth based on a figure of 10 per cent. He added:

"I consider that the disputes that parents bring to court will only very seldom involve an issue of law. They are, instead, disputes that arise from a breakdown in the key relationships within a family and, in particular, between the child's two parents. ...

"Cases of straightforward relationship dysfunction, not involving abuse or a need for protection, should not need to come before a magistrate or judge for resolution. ...

"To my mind, there has got to be a better way of assisting those couples who need some help and support at what is plainly a difficult time for them and for their children."

Sir Andrew also raised two other matters. He said that, pending video link technology going live in every court, it seemed sensible for it to become the norm in Family Court for without notice applications, particularly non-molestation injunctions under the Family Law Act, to be conducted over the telephone. The decision whether or not to undertake a telephone hearing and, even if such a hearing commences, whether or not to adjourn for a face-to-face hearing, will always be under the control of the judge.

The other matter arose from the "short order" pilot undertaken at the Central London Family Court which has demonstrated the benefit of relaxing the requirement for longer orders in the current climate. Consequently, he is drafting Practice Guidance to this effect, so that, at all hearings in a children case after a first hearing, at which the ordinary narrative order will be required, it will be sufficient for the court order simply to reflect what took place at that particular hearing. In due course, once the necessary IT systems are readily available, it is likely that he will issue further guidance to revert to the standardised forms developed under Sir James Munby's presidency.

For the full text of the speech, click here.