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How will your family law case be heard during COVID-19 restrictions?

As we now find ourselves in a third coronavirus/COVID-19 lockdown, clients are asking how we expect their family court case will be handled now and in the future. Here we offer an insight into what has been happening in the family courts and what might happen in the future. 

Last updated on January 27th, 2021 at 02:52 pm

family courts

As a result of the more transmissible variant of coronavirus and the escalating number of infections in the UK, the Law Society is calling for a two week pause of non-custodial Crown and Magistrate’s court work (criminal issues).  This could include cases involving criminal allegations of domestic violence. Family court cases are continuing and, unlike the first lockdown in March 2020, the courts are remaining open although remote attendance is the default position.  Read our update here.

In his report last year – The Family Court and COVID-19: The Road Ahead, president of the Family Division, Sir Andrew McFarlane, reviewed his previously optimistic view that the situation created by COVID-19 “would all be over by July” and suggested that courts may not be back to normal until the end of 2020, or possibly into Spring 2021. Emphasising that what he described within the report was “aspirational, untried and likely to depend upon the ability of a range of agencies and professionals to deliver resources or to work in ways which will be new”, Sir Andrew set out how he expects cases to be handled by the family courts.

Sir Andrew has now provided an update in his report ‘The Road Ahead 2021’, in which he reiterates much of what was said in his first report.  He confirms that family cases that are listed to be attended (fully or hybrid) must now be revisited with a view to moving to a remote hearing where possible.

The family courts were already overloaded before the first lockdown was announced and they were already assessing ways of speeding up family law cases.  This became more urgent as a result of the COVID-19 pandemic and so courts moved quickly to working remotely. Sir Andrew said that a ‘bedrock of experience’ exists within the family courts and that, as they had been reopening since July 2020 (with strict social distancing and cleaning protocols in place) some cases were to move to attended hearings (fully or partly – see hybrid cases below).  However, many cases and much of the administrative work is still being carried out remotely.  In his latest report, in which he says cases are now to heard remotely wherever possible, Sir Andrew discusses how courts have been improving their ability to handle cases more efficiently, thus helping to reduce the backlog.  He says that resources such as equipment, staff numbers and judge sitting days have increased.

With previous experience of handling family law cases remotely, Graysons family lawyers have worked throughout all three lockdowns, using both telephone and video conference to help clients deal with their family issues.  We have met clients remotely and will continue to do so where possible and, whilst face to face meetings are not currently taking place for the safety of clients and staff, we will continue to keep this under review.

The Courts and Tribunal Judiciary has also produced an in-depth document giving further details of how family cases can be handled in three different ways: fully attended hearings, hybrid hearings and remote hearings.  Bradie Pell, partner and head of Graysons’ family team, discusses these options here.

Fully attended hearings

In “The Road Ahead”, Sir Andrew states that “where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place”.  He expects that fully attended hearings should take place only in exceptional circumstances, where the urgency of the case means that attendance at court is necessary for those involved.  Whilst more cases will now be fully attended, this can only happen where the courtroom and buildings provide a COVID safe working space.

Open courts must adhere to social distancing guidance.  Inevitably, this will reduce capacity within the courts, so whether a hearing is to be fully attended, hybrid or remote – or adjourned – is the decision of the attending judge.  Decisions will be made on a case-by-case basis, with the overarching criterion being “the interest of justice”

Courts will encourage pre-hearing discussions to take place remotely and email submission of statements etc. (e-bundles) wherever possible.

Where parties/witnesses etc. are attending court, it is understood they will be given staggered arrival times and will be expected to adhere to these times in order to maintain social distancing requirements.  Courtrooms will be laid out to accommodate social distancing.  A limited number of people will be allowed in the courtroom and the space allocated for these people will be marked out with tape.  Public spaces in the courts will also be organised to limit the number of people who can occupy them.

Due to the backlog of work and adjourned hearings that have built up, Sir Andrew has announced that there will be a “very radical reduction” in the amount of time courts can spend on each case, which will necessitate cutting down on the amount of oral evidence possible.

It is important to note that there are some decisions that a judge cannot make without hearing oral evidence and examining the demeanor and presentation of those giving it, so these cases are more likely to require a fully attended or hybrid hearing.  Also, there are some cases in which not all parties will agree to a remote hearing.  In these cases, the judge must make the decision as to which manner of hearing should take place.

Cases involving children, vulnerable adults and where parents and/or witnesses need to give evidence are most likely to be held at fully attended or hybrid cases.

Hybrid cases

These are cases in which one or more participants attend the court at which the judge presides, and other participants attend remotely, for example by a cloud-based platform (such as Skype or Microsoft Teams). These hearings have been taking place since May 2020 and are being increasingly used. Sir Andrew says that such hearings are vital where the case is not suitable for a remote hearing, but where a fully attended meeting cannot take place.  Again, the key is that the process is fair.  Many of the cases that have been heard in a hybrid situation to date are children cases, where the judge, the parents and their advocates are in the courtroom, and other participants and their advocates are connected remotely.  However, it is not envisaged that only children cases will be heard in this manner and other cases, such as financial matters, are now being heard this way too.

Hybrid hearings may also be the option where some of the participants are unable to attend remote hearings due to lack of IT equipment, knowledge, or their ability to use it.

Those attending the court will be expected to follow the same rules as for fully attended cases. Remote pre-hearing discussions and email submissions will be encouraged.

Remote hearings

Cases can be heard remotely either by telephone or by video conference.  In “The Road Ahead”, Sir Andrew makes it clear that telephone hearings are most likely suited to short case management or review hearings.  However, they are unlikely to be suitable for hearings where evidence is to be given or the hearing is of substance, in which case video conference is more likely to be suitable.

In a telephone conference, a judge sits in court and the solicitors and their clients are on the telephone.  The judge leads the call, and the solicitors argue their clients’ cases.  Statements and other documents are filed digitally, as e-bundles, in advance of the hearing.

Video conferences are similar and work well, with the judge leading the hearing and solicitors and clients using a video platform to attend the hearing, in their own office/home where possible.  Judges are encouraged to recommend the use of the Cloud Video Platform (CVP) or Skype for Business for remote hearings, but in his update ‘The Road Ahead 2021), Sir Andrew says that access to technology has improved significantly since the beginning of the first lockdown and video platforms are now supported at all levels by the Family Court.

Courts will generally advise which platform is to be used three days before the hearing, although it can be less.

It is likely that a significant amount of family work will continue to be handled remotely in the near future.  However, Sir Andrew makes it clear that the use of remote and hybrid hearings “must not be at the expense of a fair and just process”.

Going forward, how can Graysons deal with family cases?

We can meet with clients remotely, either by telephone or video call, to discuss family law cases.  We have not been prevented from progressing divorce cases to decree absolute throughout the lockdowns.  We have also had a number of final hearings take place remotely, where the case has been suitable.  Everything can be done remotely.  Documents can be received and collated remotely and sent on to the courts as e-bundles.  We will continue to keep face to face meetings under review and your lawyer will advise you on this when you speak to them.

We have been able to agree arrangements for children remotely, through online/telephone meetings with parties and their representatives.  When a consent order is issued, we can obtain signatures and lodge it with the court.

family courts COVID

Bradie Pell

We can deal with financial negotiations remotely too.  We can obtain property valuations and pension reports, for example, and can meet with experts remotely. We can use an accelerated, paper only system to deal with the first directions appointment (FDA), so there may be no need for you to attend court, at least in the early stages. Her Majesty’s Courts and Tribunals Service (HMCTS) is encouraging financial dispute resolution (FDR) hearings to take place remotely and in private (this is where a solicitor, barrister or retired judge conducts the hearing rather than the court). Your lawyer can advise you on this.

Whatever family law issue you have, contact our family law solicitors now.  They will be able to discuss the matter with you on the telephone and will advise the best way forward.  Subject to the guidelines in place and the safety of you and our staff, we will advise whether that requires your attendance at our office, or whether we can deal with your matter remotely.  Our family law experts can also help if you are worried about an existing case or your potential attendance at court or if you wish to discuss which route your case is likely to take. You can contact our staff on the direct telephone number or email address you already have or those given in their profiles, which you can find here.

Author: Bradie Pell, partner and head of family law.

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