Wellbeing not an 'optional extra' as volume of family cases increases

More sitting days have taken place on family cases in 2020 than in any previous year despite the lockdown, but wellbeing must be a high priority, the president of the family division has said. 

In his Autumn view from chambers, Sir Andrew McFarlane expressed “pride and admiration” for what has been achieved so far; but he also shared deep concerns at the physical and emotional impact on court users.

As well as the number of sitting days this year, there has been a growing backlog, partly from cases that had to be adjourned during the early days but also from an upturn in the number of private law and domestic abuse allegations now coming to the court, he noted.

In September, CAFCASS recorded a 7% rise in public law applications and a 14% rise in private law applications compared to September 2019.

However, Sir McFarlane acknowledged that remote working is often more tiring and stressful than taking part in a face-to-face hearing.

“The increased volume of work in the system, including many urgent cases”, he added, “has meant that the pressure on each individual has been unremitting, whether they are staff members, lawyers, social workers, CAFCASS officers, judges or magistrates.”

Speaking to designated family judges, Sir McFarlane said each one he has spoken with described a high level of fatigue amongst the judiciary and staff at their courts; and representatives across the professions also speak of a similar level of exhaustion.

But he observed how “the remorseless pressure from the volume of work is, if anything, increasing”.

“I have heard that it is now not exceptional for lawyers to be emailing each other in the small hours of the night”, he commented.

“I have heard more than one account of courts directing that skeleton arguments should be filed on a Saturday or Sunday.

He also noted the resulting impact on lay parties who are before the court and called for each court centre to have a wellbeing protocol that has been discussed and agreed. 

Now is the time to redouble the focus on wellbeing, he urged. 

“It is plain that the system is at present running low in terms of the personal reserves of the human beings who work within it,” Sir McFarlane said.

“There is currently no light at the end of the tunnel and the current news indicates that we may have many months ahead of us working as we now are.

“There is a need to continue to be kind and understanding of each other. 

“It is crucial that you should all take stock of the issue of wellbeing, both individually and collectively, and, if one or more current work practice is unsustainable, then you should speak out and say so.”

In response, Jan Galloway, partner at Moore Barlow commented: “It is acknowledged that the judiciary and their staff have been working relentlessly to overcome the issues covid has had upon family law and the listing of the cases. 

“It is evident that even with all that hard work there is still a backlog and clients are still facing delay and frustration in what the perceive as difficulties in gaining access to justice.”

She said it is for the legal profession to work together to try and reduce the backlog and find other ways to manage and resolve issues on behalf of clients.

“We are also heartened by and recognise the need for wellbeing throughout the profession to be a priority”, she added.

“There is a tension in the requirements of the profession from the top down to address the impacts of delay for the clients but also to afford wellbeing a central place of importance in these times.”