The Future of the Family Division: a discussion between Sir James Munby and Sir Andrew McFarlane

Sir James Munby and Sir Andrew McFarlane sat down together to discuss the road ahead for the Family Division in an event hosted by the Personal Support Unit, a charity supporting Litigants in Person. In a frank and wide-ranging discussion, neither Munby nor McFarlane held back, acknowledging the urgent need to overhaul methods of practice and, more broadly, the underlying structure of the family courts. In a format that fell somewhere between a formal debate and a friendly chat the incoming and the outgoing Presidents were looking to the future to give their perspective on the challenges facing the Family Courts; what they will be, who they will impact and how they can be navigated.

In terms of welfare, both Presidents were clear that this has become a hot button topic in the past few years because there is a crisis brewing at the Family Bar, practitioners asked to do more and more with less and less. With care cases alone increasing by 25% and static or falling resources, McFarlane warned that if things continue as they are, it won’t be the system that breaks down, ‘in my experience, systems grind on’, but rather it will be the individuals working in the courts that buckle under the pressure.

Looking to the future, Munby and McFarlane were enthusiastic about technological developments that will adapt the courts to contemporary needs. Munby set out the current problem in stark terms, ‘if we don’t reform we go into managed decline’ sustaining a ‘mid-Victorian process in the 21st century’. McFarlane identified three upcoming changes - paperless courts, more applications online and virtual hearings, to be developed in-house at HMCT by ‘court people’ who understand the system from the inside out. Both Presidents were frank about the poor results of past attempts to modernise. In terms of Bury St Edmunds, this, Munby said, was an example of what happens when things go wrong, when attempts at innovation are underfunded and understaffed and ‘the tragedy is that its failure taints the online system’. Both Presidents were confident that more can and should be moved online, with a population increasingly operating within a paperless world, the courts need to speak to their users in a language they understand. By way of example McFarlane pointed out that divorce applications are consistently filled-in more accurately digitally rather than on paper. In terms of hearings, Munby acknowledged that a virtual system would probably never be appropriate for CMH’s and Final Hearings, the benefits of having all parties and their representatives physically present were too great. However, for routine directions hearings, the outgoing President was confident that both time and money could be saved by going online. 

Moving to Finance, McFarlane expressed concern over the ‘lottery’ litigants face, not knowing if they’ll be in front of a judge with any real experience in financial remedies work. He highlighted a trial ticketing scheme underway in Birmingham, mirroring the methods employed in Children cases, as a possible way forward and also expressed some support for greater involvement of Circuit Judges at first instance. Both presidents were sanguine about the use of private FDRs, allowing litigants control over dates, judges and premises. Munby identified their popularity as something of an indictment of the court offering, saying ‘this is the working of the market place’, and that if people are willing to pay for an FDR when the court will provide one ‘essentially for free’ then there must be real problems with the service the court provides.

Finally, the discussion moved to Public Law and the big question over the increase in case numbers. There are no easy answers here, McFarlane said, but in simplistic terms it appears that while the number of high-end cases, where children are at severe risk, has remained steady, a groundswell is coming from interventions in instances of lower-level harm. With cuts in government services starting to really bite, parents just don’t have access to the same support that they used to. Yet, for those struggling to care for their children the threshold for the court’s involvement, of course, has remained the same. McFarlane highlighted that the courts are doing what they can to ensure families are kept together if possible, with the sensitive and targeted use of orders seeing a 20-30% rise in children returning home at the end of care proceedings. Munby, however, referred to the troubling research from Professor Judith Harwin at the University of Lancaster exposing significant variations in the way similar demographics are treated by family courts around the country. For example, as a mother, the risk of having your baby removed at birth by the state depends ‘wildly’ on where you live. The departing President observed that a system where a mother in London is at greater risk of having her baby removed because of where she lives is clearly not serving families or protecting children to the required standard.

The incoming President paid tribute to Sir James Munby, not only for the impact he has had on the Family Division but also for the generosity and consideration he has personally shown during their handover. Whilst keenly conscious of the obstacles ahead facing litigants and practitioners, both speakers struck a quietly optimistic note that these could be understood, met and overcome.

By Natalie York. 

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