Teetering on the brink of collapse? The family law system in 2021
September 2, 2021
This article was originally published in Counsel Magazine (September 2021)
If not teetering on the brink of collapse the public law family system and the Bar that serves it is, I respectfully submit, in crisis and in need of urgent care and attention.
This article is a personal plea from a family practitioner who is exhausted, feels undervalued and ground down by the relentless and remorseful onslaught of work and who seems to have the same conversations several times a day that speak to common exhaustion and despair.
In October 2018, when addressing the Association of Lawyers for Children Annual Conference, the President of the Family Division, Sir Andrew McFarlane asserted “…I do not think that systems collapse in these circumstances. Systems simply grind on; it is people who may collapse or fall over…”
The circumstances to which he referred included overworking at an unsustainable pace to meet a significant increase in workload not matched in any way by a corresponding increase in resources, including human, amongst the various professions that serve the system and make it turn and work.
The President explicitly eschewed the use of the word “crisis” opining that its use in 2018 was unhelpful to those working in the system. During that speech, however, he recognised that his predecessor, Sir James Munby, had stated, in 2016 (a year that saw an increase of 25% in the issue of care proceedings), “We are facing a crisis and, truth be told, we have no very clear strategy for meeting the crisis.”
Far be it for me, a family practitioner of over 30 years’ call, to challenge the President but 15 months into the Covid pandemic it is unarguably clear that the profession is overwrought if not overwhelmed. This is also the experience of the judiciary, the Children and Family Court Advisory and Support Service (CAFCASS) and social workers – the system IS in crisis and we need urgently to ask: how many people need to collapse or fall over before the system does grind to a halt or becomes so denuded of its integral parts as to be no longer fit for purpose?
Given the state of wellbeing and morale at the Family Bar – and the invaluable role and service it provides – answering this question demands urgent attention.
At the time the President gave that speech in 2018 I was not in practice having taken a sabbatical overseas in 2011 that morphed into an eight-year sojourn. The decision to step away from the Family Bar in 2011 was fuelled, at least in part, by an acute recognition that the long hours, stress and demands of life as a family practitioner were no longer conducive to my wellbeing. In retrospect I believe I had reached burn-out and stepping away from the career to which I had devoted such passion and commitment was a much-needed act of self-care. However, the draw of this noble profession lured me back from overseas into practice in the summer of 2019. What I found upon my return, despite the warnings of friends and trusted colleagues, came as a shock.
In the year ended March 2011 applications by the State for care orders affected 83 in 100,000 children as a national average according to CAFCASS. The figure in my ‘home’ authority of Liverpool City Council was 137 children per 100,000. Those figures had increased to 108 and 182 children per 100,000 respectively in 2019-2020, my first year back in practice. If the pace of life at the Family Bar had seemed fast in 2011 by 2019 this had intensified to frenetic. Worse was to come with the pandemic and the initial lockdown from March to July 2020 which saw families captured together 24 hours a day, 7 days a week; perhaps inevitably increased stressors on parents, increased vulnerability of children, and reduced access to protective services all combined to heighten the risks faced by children.
Morale at my local family bar had seemed positive in 2011 but by 2019 this had markedly changed. Many colleagues presented as ground down by the relentless barrage of work. Covid-19 has only served to exacerbate this. The Family Bar swiftly pivoted to online remote working and although many lengthy trials listed in the early months of the pandemic were immediately taken out of the court list, by late summer we were becoming adept at conducting complex and lengthy hearings remotely as we began to work through those previously adjourned cases being heard.
Remote working has imposed an additional layer of stressors, everything from that frisson of panic that is felt when one cannot find the hearing link to the vagaries and pressures of attempting to deliver sometimes unpalatable advice in emotionally fraught circumstances to clients who are struggling to access adequate technology or, even those who are on the bus returning home from a trip to the supermarket. The challenges inherent in supporting clients to give evidence about trauma they have experienced, sometimes of the most heinous kind such as sexual abuse, is made all the more difficult by the barrier of the ethernet and possibly all the more harrowing for them for having to do so from their own living rooms. Indeed, this invasion into the home, both for people engaged in proceedings as well as practitioners has had a myriad of effects, only some of which are positive. It turns out that the commute into Court provides a much-needed psychological break from the court day that is not replicated by the move from the makeshift study to the kitchen and back. This is to say nothing of the pressures applied to barristers and chambers from early in our struggle through the pandemic to permit clients to attend chambers and participate in hearings together with counsel thereby exposing barristers and chambers’ staff to a dangerous and sometimes worrying level of risk.
Whilst the courts, or at least my local care centre, have done sterling work to make the court ‘Covid-safe’ so that in-person hearings can take place when necessary, I returned in 2019 to a court centre that was overcrowded (because of the increased workload), lacking (as it always had been) in adequate conference rooms, safe waiting areas and services for litigants and advocates alike, and very much in need of a generous lick of paint.
The burden of work on practitioners has increased as template orders became more comprehensive and case summaries (and now agenda and minutes of advocates’ meetings) are the norm. Very often counsel are not remunerated for any of this additional paperwork which is done to make the task of the overworked family court judge easier but adds significantly to our workload.
Consequently, it came as no surprise to me to read the findings of a survey undertaken by the Bar Council in December 2020 that 1 in 4 barristers wants to leave the profession.
The immediate question is how to relieve some of the pressure. This is difficult to answer. Such is the volume of work that cases are occasionally having to be adjourned for lack of adequate counsel. Getting more work done, not less, is what is required. Abandoning, if only for a short time, the drive to complete cases in 26 weeks would certainly help. So too would accepting that as much we all want to ensure vulnerable children’s needs are met as soon as possible, having barristers start work at 8.30am to do an advocates’ meeting, attending court all day, conducting conferences with clients at 7pm in the evening before then having to prepare for the next day late into the night or early into the following morning is neither conducive to that aim nor sustainable.
In the longer term real and effective investment in the family justice system is urgently required if the system is not to buckle and collapse. The system is in crisis and a failure now to recognise it as such demeans the herculean efforts of all involved, minimises the struggle required to keep the system operative, and is not helpful in addressing political attention to what is an urgent issue if the wellbeing of our children and families and adequate access to justice for them are to be safeguarded.
Practitioners are starting to collapse and fall over. The system will be next.