The COVID-19 pandemic has created unprecedented challenges worldwide. Although it may feel like the world is standing still, the Family Justice System must continue to operate, and it has already adapted rapidly to enable social distancing.
The President of the Family Division, Sir Andrew McFarlane, has issued guidance that the Family Courts should ‘keep business going safely’ during the crisis. The Courts are trying to balance continuing and fair access to justice whilst ensuring the safety of the Court users, the Court staff and lawyers.
What does this mean if you have a Family Court hearing listed?
The Family Procedure Rules 2010 already allow for the Courts to hold remote hearings and use technology in appropriate circumstances. This can mean a hearing by telephone, video link or any method of oral communication.
During the Covid-19 pandemic, the Courts have been harnessing new technology, including Zoom and Skype, to carry out some hearings remotely.
Almost all types of Family Court hearings can be heard remotely, including:
- Directions and Case Management hearings
- Public Law proceedings including applications for Interim Care Orders, Care Orders, Supervision Orders
- Private Law children hearings including First Hearing Dispute Resolution Appointments (FHDRA)
- Applications for Special Guardianship Orders
- Applications for Injunctions (Non-Molestation Orders and Occupation Orders)
- Financial cases
- Contested final hearings
- Any other hearings as directed by the Judge
If you have a hearing listed, it remains a fundamental principle of a fair trial that you are able to participate, whether it is held in person or remotely.
If you have legal representation, you should contact your solicitor to find out if your hearing is going to be heard remotely, and they will confirm the arrangements for your attendance. If you are not represented, you should contact the Court where your hearing is listed. You will need to provide your contact details and confirm whether you have access to the technology the court propose to use for your hearing.
If yourself and the other party are unrepresented, the Court will arrange the remote hearing, and they will send a video conferencing or Zoom invitation to you or arrange the dial in details for a telephone hearing.
You should explain to your solicitor (if you are represented) or the Court (if you are unrepresented) if you will have difficulty attending, so that they have as much time as possible to resolve the issues.
How will the remote hearing work?
The Judge, the legal representatives and the parties will attend either by telephone or by video, and the hearing will be conducted in a format as close as possible as it would be in person.
Family Court Proceedings are confidential and as such it is very important that you make sure you are in a private place where the court hearing cannot be overheard. If you are attending the hearing from home during the lockdown, you will need to make sure any children or other family members cannot hear.
The courts have been working hard to overcome the confidentiality issues and security risks presented by remote hearings. It is now a criminal offence for any person to record or transmit any broadcast from the Court.*
Not all hearings are suitable to be heard remotely
The President of the Family Division has been clear that hearings must be fair for all involved, stressing that remote hearings ‘must not be at the expense of a fair and just process’.
Some hearings are being adjourned by the Court. This is often because they are too complex to be heard remotely, or, because they are non-urgent and can be postponed until the lockdown is lifted.
On 16.04.2020 the President made a ruling that a 15 day Final Hearing in a Care Proceedings matter would not be suitable for a remote hearing (P (A Child: Remote Hearing), Re  EWFC 32).
The hearing had been listed to determine serious allegations of harm to a child. The Court and the parties had initially agreed to proceed with the hearing remotely.
However, the President intervened and ruled that in this particular case, a remote hearing would not allow proper and effective participation of the parents, and he directed the 15 day hearing which had been due to begin on 20th April, must be vacated and re-listed to be heard in person once the current lockdown restrictions have been lifted.
As each case is unique, there can be no definitive guidance for which cases are to be held remotely, but the court will consider suitability on a case by case basis.
Can I make an application to Court during the lockdown?
The Court are accepting new applications in family matters as usual, including applications for Child Arrangements Orders, Prohibited Steps Orders, Specific Issue Orders, Occupation Orders and Non-molestation Orders. The Court are, of course, prioritising applications according to their urgency where possible.
It should be noted that Sir McFarlane has warned parents with Child arrangements orders not to exploit the current lockdown, and urged that parents properly communicate and try to resolve issues outside of the Court.
Applications for Non-molestation orders in particular have risen since the lockdown began. If you are in danger, please remember that you are not alone, help is still available. Our short post on Support Services for Domestic Abuse Victims can be found here.
If you are seeking legal assistance and advice on a family law matter, our expert family team are here to help as usual.
*The Coronavirus Act 2020 has made temporary modification of section 85 of the Courts Act 2003