| How The Family Courts Are Responding To Covid-19 | |
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The President of the Family Division and Head of Family Justice has issued guidance specific to the family courts about how they should respond to the issues created by Covid-19. This is following the general guidance from the Lord Chief Justice, which makes it clear that the courts have an obligation to continue with the work of the courts as a vital public service.
The rules in the family courts are flexible and do allow for almost any type of hearing to be conducted by telephone or video link if necessary. The most recent guidance as a result of Covid-19 is that the default position should now be for Family Court hearings to take place remotely.
The guidance suggests the types of cases that it considers would be suitable for remote hearings. This list is very wide ranging and includes:
• First hearings for Children Act proceedings and subsequent interim hearings
• Simple final hearings in Children Act proceedings
• All hearings in financial cases – except where it is absolutely unavoidable
• Urgent hearings of any description
• Appeals
This guidance is perhaps better understood by looking at what sort of cases would not be suitable for a remote hearing. Some obvious examples are lengthy or complicated final hearings. Similarly, lengthy or complicated fact finding hearings in Children Act proceedings may also not be suitable. Parties are being encouraged to conduct the Financial Dispute Resolution (“FDR”) hearing, usually the second of the three hearings in financial cases, privately where this is a viable option.
The guidance does note 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. However, in such cases, it is likely that the hearing will be adjourned to a later date when attendance at court will be more possible.
If there are hearings already listed, which are suitable for a remote hearing, then the decision will ultimately be with the court. The guidance suggests that where it can not be agreed how such cases will be heard, it will be appropriate to adjourn the hearing and relist it for a case management hearing (which will be conducted remotely) for the court to decide how best the substantive hearing should be heard. This could result in lengthy delays in cases where the parties have already been waiting some time for their hearing.
It is encoded in the Family Procedure Rules that the family courts expect parties to co-operate so far as the conduct of proceedings is concerned and in the current situation this will be more important than ever. It would be an unattractive cynicism for a party to take advantage of the current situation for no other purpose than to cause delay for their own ends.
Logistical considerations
In terms of facilitating remote hearings, many barristers’ chambers have set up the ability to conduct remote hearings and have full video conferencing capabilities. Similarly most solicitors firms are still going but with individuals working remotely from home. Generally it will be preferable if the parties are able to connect to a video hearing from home. However, if they do not have this capability then it should still be possible for their legal representative to conduct the hearing by video call if they are able to reach their client by telephone.
One of the issues that is likely to be faced in the short-term is the practical ability of the courts themselves. It is likely that a number of courts – particularly some of the smaller regional courts – will not have the equipment for all judges and magistrates to host hearings remotely. Her Majesty’s Courts and Tribunals Service have assured the legal industry that they are working hard to increase all courts’ capabilities in this area. In the short-term it is anticipated that there will be some issues which will need to be dealt with on a case by case basis.
The Lord Chief Justice’s guidance recognises that events are unfolding quickly so much of this guidance may need to be updated as the situation continues to develop. The best advice will be to liaise with the individual courts for each case.
Written by Kirstie Law Solicitor, Collaborative Lawyer and Mediator
at Thomson Snell & Passmore. Visit www.ts-p.co.uk for further information.
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