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Wellbeing and the Family Justice System by Sir Andrew McFarlane (President of the Family Division)

This weekend I have read two Tweets, each describing what their respective writers, both senior members of the Family Bar, consider to be oppressive and unreasonable judicial behaviour.

It is very much a sign of the times (a) that such incidents are occurring and causing sufficient exasperation to lead to publication on Twitter and (b) that the President of the Family Division is reading these and similar messages. This would not have been the case ten, or even five, years ago. Family lawyers have always worked very hard and have been prepared to go more than the ‘extra mile’ without complaint. Equally, senior judges, whilst no doubt being generally concerned for morale, would not feel it necessary to take an active interest in the wellbeing of individuals in the profession to the extent of speaking out about it and, if necessary, taking action in specific cases. Times have, however, changed and the issue of wellbeing has, rightly, been taken up by the Bar in an impressive and timely manner.

The general focus on wellbeing has developed coincidentally with a massive increase in pressure within the Family Justice system and, if anything, the need for every practitioner to be aware of issues of wellbeing is, in my view, at its most acute for those working in the field of Family Law.

For the past five years the courts, following the introduction of a statutory requirement, have endeavoured to complete all public law children cases within 26 weeks. By and large, until 2016, this was being achieved and the previous average case length of over 60 weeks was, impressively, reduced to around the 26 week level. Although not subject to a statutory requirement, private children cases were also expected to be completed in a similar time. The system, whilst meeting these targets, was, with a great deal of hard work and goodwill on all sides, holding its head just above water. Then, in 2016, unexpectedly the number of applications for public law (child protection) orders rose by 25%. Rather than being a blip, this rise is now seen as being the new norm, and there is no immediate indication that it will significantly drop. At the same time, the number of private law applications is also rising, not in a surge, but steadily so that they too are now roughly 25% up on the 2015 figures.

This additional work has had to be processed by the same number of barristers and solicitors, the same number of social workers and CAFCASS officers, the same court staff and the same number of judges. All of it is undertaken within the pressure-cooker of the 26-week statutory requirement. It is, to me, and I suspect everyone, obvious that a system that was just about delivering on ‘26 weeks’ before a 25% increase in volume, is simply not going to be able to meet such a significant rise in demand, without putting unsustainable strain on resources — and, of course, the ‘resources’ here are individual human beings.

On taking up my role as President, it was, therefore, clear to me that the Bar’s, and in particular the FLBA’s, focus on well-being was not only timely but essential. I have made the issue of well-being, for all in the system, including social workers and court staff, my priority during the past year. This is partly due to a genuine concern for the pressure on individuals, but also because I fear for the viability of the system as a whole.

I have been plain, when speaking at National events and during my current round of visits to each Family Court centre, that the need to hit the 26 week target is not something that I am presently concerned about; in terms of my own wellbeing, it is not a matter that keeps me awake. Judges and courts should do a full day’s work, but no more. Time must be kept for the lawyers, the court staff and the judges to do work on other cases and, importantly, to have a life outside their work. We are all playing a long game in terms of our careers, our health, and our private and family lives. The current unprecedented pressure in the Family Court is not about to go away. It is unreasonable and unsustainable to expect courts to operate for more than a full day. To do so not only causes undue pressure on the individuals concerned, it also serves to mask the level to which the resources do not match the current workload.

I have been keen to promote open and honest discussion in each locality between the professions and the judiciary in the hope that short statements of common understandings may be drawn up which identify what is regarded as reasonable, and unreasonable, in terms of working hours, email traffic, length of orders and other documents, and other common factors. Whilst the clear downside in inviting these to be developed locally, is that the resulting statements will differ from one court centre to another, so that someone appearing in a court off their usual patch may be unaware of what is expected. I believe this downside is worth bearing in the short term as I am sure that, by allowing these statements of practice to be developed from local discussion, they are much more likely to be ‘owned’ by the local judges and professionals than would be the case with a diktat issued nationally by the judiciary or the Bar Council. Once we have a good number of local statements of understanding, I strongly suspect that some common themes will be identified and these may then be pulled together into a national statement.

Where the understandable desire of some judges to get through the increased burden of work leads to practices that go beyond what is thought to be reasonable or acceptable, I would hope that the profession would, as a first step, use the usual channels to communicate this to the individual judge. These are not easy situations, but I hope that the public comments that I and others have made will provide a context for issues of wellbeing to be raised either in court or by other communication with the judge. In the unlikely event that a judge does not heed such a request, then it is right for the issue to be raised with the local Designated Family Judge, or Family Division Liaison Judge, as may be appropriate. Similarly, if my Office becomes aware (either via Twitter or other means) of judicial behaviour which appears to go beyond what is reasonable, it is likely that the matter will be referred to local leadership judges for consideration.

These are not easy times. We are all caught between a desire to do a good job in a timely manner, but where the burden and volume of work is more than the human resources can cope with. Nationally moves are afoot to take steps to reduce the volume of business in the Family Court. Later in June I will be publishing extensive interim proposals from the Public Law and the Private Law Working Groups. Consultation on these proposals will close at the end of September and consequent changes should begin to be brought in soon thereafter. However, it is unlikely that there will be any reduction in the volume of work for many months to come. It therefore remains most important that regard for wellbeing remains in the prominent position that it now holds in our collective consciousness.