In his recent report – The Family Court and COVID-19: The Road Ahead, president of the Family Division, Sir Andrew McFarlane, says that a previously optimistic view that the situation created by COVID-19 “would all be over by July” has now been reviewed and that courts may not now be back to normal until the end of 2020, or possibly into Spring 2021. Emphasising that what he describes within the report is “aspirational, untried and is 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 sets out how he now expects cases to be handled by the family courts
The family courts were already overloaded before the lockdown was announced by the Government and were 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 says that a ‘bedrock of experience’ now exists within the family courts and that, as they have been reopening since July (with strict social distancing and cleaning protocols in place) some cases will now move to attended hearings (fully or partly – see hybrid cases below). However, many cases and much of the administrative work will still be carried out remotely.
With previous experience of handling family law cases remotely, Graysons family lawyers have worked throughout the lockdown, 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, but socially distanced face to face meetings will become available as the lockdown eases with the necessary safety measures and checks in place.
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 the Government’s 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 during the lockdown, 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 financial matters, where parents and/or witnesses need to give evidence are most likely to be held at fully attended or 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 of 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.
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. Many people are probably used to using Zoom, but this is not currently supported by the judiciary.
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 lockdown. Everything can be done remotely. Documents can be received and collated remotely and sent on to the courts as e-bundles. We will be moving forward to meeting clients face to face, on a safe and socially distanced basis, and your lawyer will advise 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 using an online portal.
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 should 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 experts now. They will be able to discuss the matter with you on the telephone and will advise the best way forward. 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 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.