Family court work at ‘all-time high’, says senior judge

Sir Andrew McFarlane says everyone working in ‘family justice’ is operating at the ‘extent of their capacity’.

Sir Andrew McFarlane (Courts and Tribunals Judiciary/PA) (PA Media)

A senior judge has said the “volume of outstanding work” in family courts is at an “all-time high”.

Sir Andrew McFarlane, the president of the Family Division of the High Court and the most senior family court judge in England and Wales, said everyone working in “family justice” is operating at the “extent of their capacity”.

He said agencies and law firms have had to “ration” their use of resources as demand in some areas has exceeded the capacity to deliver, and said there is an “unacceptable delay” in listing cases.

The judge outlined his thoughts in the latest edition of a regular online message to lawyers.

He said it was “timely” to take stock of the “state of health of the family justice system” as England and Wales began to move out of “Omicron variant restrictions”.

“… the reality which is that the volume of outstanding work in the family court is at an all-time high,” Sir Andrew said, in the message, called A View from The President’s Chambers.

“Each and every one working in family justice is doing so at the extent of their capacity, and has been doing so, now, for nearly two years.”

He added: “Agencies, such as CAFCASS (the Children and Family Court Advisory and Support Service) and NYAS (The National Youth Advocacy Service), have had to ration the use of their resources as demand, at least in some areas, has exceeded their capacity to deliver.

“I know that the same is also true for some solicitors’ firms, barristers’ chambers, expert witnesses and others.

“In the court, despite continuing to deploy significantly more judicial resources each month than was the case pre-Covid, the backlog remains stubbornly high, with a consequence that there is unacceptable delay in listing cases”

Sir Andrew McFarlane

Sir Andrew said family courts worked in a “dynamic context” where the life of the participants continued to be lived and it was not unusual for fresh events to occur within ongoing proceedings.

The judge added: “Backlog and delay in the Family Court are not, therefore, static; like dough proofing on a baker’s shelf, they have the potential to feed on themselves and grow the longer cases are left without a final resolution.”

He said there was “no single, let alone simple” answer to the question “what is to be done?”

Sir Andrew said a “range of initiatives”, aimed at bringing the backlog and individual workloads back within “reasonable bounds” – while maintaining “our commitment to deliver justice” – were in train.

He said he wanted to “increase the efficiency of the court process”.

“My primary theme for the coming months is ‘make every hearing count’,” said Sir Andrew.

“Despite the increase in judicial resources that we have had for the past two years, the number of concluded cases in both private and public law has not gone down.

“Statistics show that the number of hearings that are held before a case is concluded has increased.”

He said one idea, put forward by a working group, was for judges dealing with parental disputes about children to “support them in the resolution of dispute” rather than apply the “more traditional adversarial mode”.