Coronavirus (COVID-19)—National Guidance for the Family Court

Coronavirus (COVID-19)—National Guidance for the Family Court

Family analysis: The President of the Family Division, Sir Andrew McFarlane, has issued National Guidance for the Family Court (the Guidance) in light of COVID-19 setting out details of which hearings may be suitable for a remote hearing, technical aspects, provision as to e-bundles and which party must liaise with the court to arrange and record the remote hearing. A draft directions order and guidance issued in relation to the Financial Remedies Court are also annexed to the Guidance.

The President of the Family Division: National Guidance for the Family Court (19 March 2020)

What principles are set out in the Guidance?

The Guidance was issued with the approval of the Lord Chief Justice and the Senior Presiding Judge and is in immediate effect at all levels of the Family Court and in the High Court Family Division. The principles underlying the Guidance are that:

  • there is a strong public interest in the family justice system continuing to function as normally as possible despite the present pandemic—at the same time, in accordance with government guidance, there is a need for all reasonable and sensible precautions to be taken to prevent infection and, in particular, to avoid non-essential personal contact
  • the government guidance is primarily aimed at the social setting, rather than the business/work environment and depending on the circumstances there may be the need, and no harm involved, in having a number of people present in court for an oral hearing, and
  • taking these competing factors together, while the default position should be that, for the time being, all family court hearings should be undertaken remotely either via email, telephone, video or Skype, etc, 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

The President has confirmed that in contrast to jury trials in the Crown Court, there is no category of case that may be listed in the Family Court which necessarily requires the physical attendance of key participants in the same courtroom. The determination of whether or not a remote hearing is to take place will not therefore turn on the estimated length of the hearing, but on other case specific factors.

Which cases are suitable for a remote hearing?

The Guidance sets out a list of categories of hearing that are suitable for remote hearing, ie:

  • all directions and case management hearings
  • public law children: emergency protection orders; interim care orders; and issue resolution hearings
  • private law children: first hearing dispute resolution appointments; dispute resolution appointments; other interim hearings; and simple short contested cases
  • injunction applications where there is no evidence that is to be heard (or only limited evidence)
  • financial cases—see also the guidance issued for the Financial Remedies Court by Mostyn J on 17 March 2020 annexed to the President’s Guidance
  • appeals, and
  • other hearings as directed by the judge concerned

Where a case in one of the categories listed above has already been listed for a hearing at which the parties are due to attend court then, if it is possible to make arrangements for the fixed hearing to be conducted remotely, then the hearing should go ahead remotely without any personal attendance at court. A draft directions order is at Appendix A of the Guidance.

The President has confirmed the need for a flexible approach, saying:

‘It is possible that other cases may also be suitable to be dealt with remotely. As the current situation is changing so rapidly, and as the circumstances that will impact upon this decision are likely to differ from court to court and from day to day, the question of whether any particular case is heard remotely must be determined on a case-by-case basis.’

Where a case cannot be listed for a remote hearing:

  • any existing listing should be adjourned and the case must be listed promptly for a directions hearing, which should be conducted remotely, and
  • the primary aim of the directions hearing should be to identify the optimal method of conducting the court process in order to achieve a fair and just hearing of the issues but, at the same time, minimising as much as possible the degree of inter-personal contact between each participant—in appropriate cases, this may involve the use of a remote hearing where it is possible to conduct the court process in a manner that achieves a fair and just consideration of the issues

The President says that recent experience has demonstrated that it is possible to conduct a complicated extensive multi-party hearing using the Skype for Business system available on judicial laptops. In other cases it may be necessary for there to be personal attendance at court, for some or all of the hearing, by some or all of the participants.

See also the guidance issued by HMCTS on telephone and video hearings during the coronavirus outbreak here.

How should urgent hearings be dealt with?

In relation to urgent cases, the President’s guidance states:

‘Even where a case is urgent, it should be possible for arrangements to be made for it to be conducted remotely. The default position should be that the hearing is conducted remotely. Where a case is genuinely urgent, and it is not possible to conduct a remote hearing and there is a need for pressing issues to be determined, then the court should endeavour to conduct a face-to-face hearing in circumstances (in terms of the physical arrangement of the court room and in the waiting area) which minimise the opportunity for infection.’

What technical guidance is included in the Guidance?

The Guidance states that remote hearings may be conducted using the following facilities as appropriate to the individual case:

  • by way of an email exchange between the court and the parties
  • by way of telephone using conference calling facilities
  • by way of the court’s video-link system, if available
  • the use of the Skype for Business App installed on judicial laptops, or
  • any other appropriate means of remote communication, for example BT MeetMe or FaceTime

In addition:

  • any arrangement for a remote hearing must make provision for the hearing to be recorded
  • where the hearing takes place with the judge/magistrates in a court room, recording will take place in the ordinary manner
  • if BT Conferencing is used for a telephone hearing, then that system will produce a transcript of the hearing
  • where Skype for Business is used, there is a facility within the software for the digital record of the hearing to be recorded (this is not the same as a typed transcript but may suffice for most purposes)

The responsibility for making technical and other arrangements for a remote hearing, and for confirming the details of the arrangements for the hearing to the other parties no later than 24 hours prior to the remote hearing taking place, is to be undertaken by the following party by liaising with the court:

  • the local authority in a public law case
  • the applicant, if legally represented, in a private law case
  • the respondent, if legally represented and where the applicant is not, in a private law case
  • the court where no party is legally represented

The President says that:

‘When conducting a remote hearing, there is a need for the judge or magistrates to use their best endeavours to ensure that only those who would be allowed into the court room for an oral hearing are privy to the remote hearing and that all parties understand that the system used by the court will record the proceedings and that no other recording is to be made by any of the parties.’

What are the requirements for bundles?

The requirements for the filing of an e-bundle are that on the day before a remote hearing the applicant must electronically file a PDF bundle which complies with Family Procedure Rules 2010, PD 27A, and which in any event must include as a minimum:

  • a case summary and chronology
  • the parties’ positions statements
  • the previous orders that are relevant to the remote hearing
  • all essential documents that the court requires to determine the issues that fall for determination at the remote hearing
  • a draft order, and
  • completed advocates’ forms together with the single address that the signed and sealed forms are to be returned to for distribution to the advocates

Geraldine Morris is a solicitor and head of LexisPSL Family

This News Analysis was first published by LexisPSL Family

 

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About the author:

Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.

Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.

When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).