President of the Family Division provides updated guidance on remote working in the Family Court

President of the Family Division provides updated guidance on remote working in the Family Court

In an address to the Family Law Bar Association’s National Conference, Sir Andrew McFarlane provided his view on the desired approach to remote working in the Family Court, an extract of the address was then circulated, click here to read.

Instead of issuing formal guidance, the President sets out ‘broad parameters within which judicial discretion will continue to be applied’ with emphasis remaining on a case-by-case basis determination. He states that nobody within the Family Court or Court of Protection expects a return to the ‘status quo’, the courts have adapted to remote working and this should now be the format of choice. His reasons were because: firstly, judicial discretion has proven successful, and, secondly, due to geographical reasons. The President stated practical inconveniences may arise in rural areas should hearings have to be in-person. 

The ‘central theme’ is that the parties and professionals should be physically present in court where important decisions may be made. Those cases in which an important decision may include:

• In public law children cases: first CMH, ICO hearings, IRHs and final hearings;
• In private law children cases: FHDRA, fact-finding, DRAs and final hearings; and
• In the FRC: FDRs and final hearings.

Generally, it is beneficial for expert evidence to be given remotely and that the format in which evidence is given by CAFCASS and local authority social services should pay consideration to the extreme pressure which those services are under.

McFarlane acknowledged that remote hearings lack the time before or in-between hearings where parties may lead to discussion, negotiation and settlement. In relation to this he stated ‘Remote platforms are good for undertaking transactional communications, but there is more to a Family Court hearing than simply transacting business. Much that goes on has a ‘human’ perspective, which can often be lost online, but is fully present in a court room.’

President’s Memorandum: Witness Statements

Sir Andrew McFarlane has provided guidance on drafting witness statements in family proceedings.

In brief, he noted the fundamental requirements of a witness statement, in that they must not:

• quote at any length from any document;
• seek to argue the case;
• take the court through the documents in the case;
• set out a narrative derived from the documents;
• express the opinions of the witness; or
• use rhetoric.

Other factors which the President discussed included points of memory, documents, matters of fact and the length of statement. Potential sanctions are also stated.

A statement template for Litigant in Persons in non-complex private law welfare cases is also provided in the memorandum.

President’s Memorandum: Drafting Orders

A memorandum published yesterday by Sir Andrew McFarlane has outlined guidance on drafting and lodging orders in the family courts.

He states that the first order made in any children’s case should contain the key information and subsequent orders should be in short form. The President stated that a Practice Direction is currently not required though this will be considered by the Family Procedure Rule Committee if the guidance in yesterday’s memorandum is not complied with.

Concerning Standard Orders, templates should be used and adapted accordingly, and that such templates only provide standard clauses for agreements/orders disposing of cases, ‘they say nothing about the content of the recitals’.

On the basis of Recitals, ‘The first and most basic rule is that where the order follows a hearing its terms (including its recitals) must reflect the result of the hearing, no more, no less’. Emphasis is placed on the purpose of a recital not being to summarise what happened in a hearing but to record ‘essential background matters which are not part of the body of the order’. He states a more flexible approach where consent orders are concerned but there must still be ‘restraint’ in relation to the content of these recitals too.

Regarding when orders must be drafted and lodged, the President stated: ‘Where one or both parties has legal representation […] the order must be agreed, drafted and lodged before the parties leave the court building or, on remote hearings, on the day of the hearing, unless this is wholly impracticable’.