—implications for family lawyers
Family analysis: This News Analysis considers the impact of the coronavirus (COVID–19) on family proceedings and sets out the guidance issued to date, the case management powers of the family courts and specific cases in which practical difficulties may be encountered.
What is the current government guidance?
Her Majesty’s Courts and Tribunals Service (HMCTS) and the Ministry of Justice have issued guidance for all court and tribunal users during the coronavirus (COVID-19) outbreak, which will be updated when new advice is available. See also LNB News 13/03/2020 17. Guidance has also been issued by the Scottish Courts and Tribunals here. The wider Government guidance on the coronavirus (COVID-19) is available here.
An update was issued by the Lord Chief Justice, Lord Burnett of Maldon, on 17 March 2020 which states:
‘Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility.’
See also LNB News 17/03/2020 57.
HMCTS has issued guidance on telephone and video hearings during the coronavirus outbreak here.
Note that the Government’s Coronavirus Bill includes provision to:
- expand the availability of video and audio links in court proceedings, and
- enable a wider range of proceedings to be carried out by video, so that courts can continue to function and remain open to the public, without the need for participants to attend in person and to give judges more options for avoiding adjournments and keeping business moving through the courts to help reduce delays in the administration of justice and alleviate the impact on, inter alia, families and witnesses
What guidance has been issued regarding family proceedings?
On19 March 2020, the President of the Family Division, Sir Andrew McFarlane, issued National Guidance for the Family Court, in light of COVID-19, which comes into immediate effect at all levels of the Family Court and the Family Division of the High Court. The guidance sets out provision for, inter alia, remote hearings (including suitable cases for a remote hearing) and technical matters for such hearings.
Mostyn J has issued guidance to Financial Remedies Court judges as follows:
- first appointments should be dealt with where possible using the ‘accelerated’ paper only procedure set out in the Financial Remedies Court Good Practice Protocol, see: The Financial Remedies Court—Accelerated first appointment procedure
- parties should be encouraged to arrange a private financial dispute resolution appointment, to be routinely dealt with remotely, see Practice Note: Private financial dispute resolution appointments and early neutral evaluation
- the default position for other hearings is that they should be dealt with via Skype (which is available on judicial laptops) and the extension of the existing virtual courts project is being actively investigated
- physical hearings should only take place where this is absolutely unavoidable
- the physical lodging and handling of documents should be avoided and the use of e-bundles should be virtually mandatory, see the e-bundles protocol and News Analysis: Protocol issued for e-bundles in the Financial Remedies Court, and
- FRC judges should endeavour to do as much work as they possibly can from home
The Family Law Bar Association (FLBA) has issued a notice, recommending ‘…the immediate cession of in person hearings for the time being and only for as long as necessary’, and that ‘[Members] should not be travelling to court. In our view, in the current climate to do so, will be placing ourselves and others at risk’.
Resolution is collating guidance for members here.
What other guidance is available?
The Law Society has issued Coronavirus advice and updates and has indicated that it is discussing with HMCTS whether all deadlines can be automatically suspended/extended for two to three months, including limitation deadlines for issuing proceedings. It has also asked the Legal Aid Agency and the Ministry of Justice about the steps they will take to support firms and solicitors through this period, including whether solicitors could be able to bill for legal aid work done at an earlier stage to support firms’ cash flows. Separate guidance has been issued regarding residential conveyancing transactions that may be relevant for family lawyers whose clients are involved in a property transaction.
The Legal Aid Agency has issued a planning and preparation update for legal aid providers here.
The Bar Council has issued a notice to provide an update on what it is doing to mitigate the impact of COVID-19 on the profession and the justice system generally.
The Bar Standards Board has also issued a statement.
What issues may arise in practice?
Practitioners may be experiencing issues in practice that are not yet dealt with in detail in the guidance issued so far, such as the availability of counsel or witnesses, disruptions to normal office working and an increased number of cases where an extension for compliance with an order or the adjournment of a hearing may be required.
Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 1.1 sets out the overriding objective, which is to enable the court to deal with cases justly having regard to any welfare issues involved. The court must further the overriding objective FPR 2010, SI 2010/2955, 1.1 by actively managing cases. Active case management includes:
- setting timetables or otherwise controlling the progress of the case
- controlling the use of expert evidence
- dealing with the case without the parties needing to attend at court making use of technology, and
- giving directions to ensure that the case proceeds quickly and efficiently
A comprehensive list of the court’s general case management powers is set out in FPR 2010, SI 2010/2955, 4.1, and include:
- extending or shortening the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)
- adjourning or bringing forward a hearing
- holding a hearing and receiving evidence by telephone or by using any other method of direct oral communication, and
- taking any other step or making any other order for the purpose of managing the case and furthering the overriding objective
See also Practice Note: Court’s case management powers—FPR 2010.
An interim application in existing proceedings is made using the FPR 2010, SI 2010/2955, Pt 18 procedure, see Practice Note: FPR 2010, Part 18—other applications in proceedings.
Some courts, given the exceptional circumstances and the current delays in issuing applications and listing hearings, may be willing to deal with adjournments and extensions more informally and the HMCTS guidance refers specifically to communications by email and phone. Local practice may vary, but for an example where a request for permission for the parties to agree extensions of time for up to 56 days by consent without a further order from the court in light of the coronavirus outbreak in a civil case, see here. As indicated by the Lord Chief Justice in his update, the FPR 2010 ‘provide for considerable flexibility’.
Video conferencing and telephone hearings
See above as to Government plans to expand the availability of video and audio links in court proceedings via the Coronavirus Bill. The Bar Council has called for all in-person hearings across all jurisdictions to be suspended other than in ‘very exceptional circumstances’. See also: HMCTS: Telephone and video hearings during the coronavirus outbreak (18 March 2020) and the President’s Guidance.
Evidence requirements (particularly if a party, witness or expert is self-isolating) may need to be more flexible in the current circumstances, but this will vary on a case-by-case basis. In accordance with FPR 2010, PD 18A, para 8.1, a request can be made for a hearing to be conducted by telephone or by video conferencing. In addition, the applicant can request that the court deal with the matter without a hearing and may do so if they do not consider that a hearing would be appropriate, the application is by consent, or the parties agree that the court should dispose of the application without a hearing and the court considers that a hearing would not be appropriate (FPR 2010, SI 2010/2955, 18.9). See also Practice Note: FPR 2010, Part 18 applications—procedure — Telephone hearings and video conferencing.
Witness evidence may be given by video link, or other means, if allowed by the court. Detailed guidance on video conferencing is set out in FPR 2010, PD 22A, Annex 3. A list of sites which are available for video conferencing can be found on the Ministry of Justice website here. Skype technology has long been used in family proceedings where required (see for example Re ML (a child) (use of Skype Technology)  EWHC 2091 (Fam) ,  All ER (D) 232 (Jul)). See also Practice Note: Witness evidence in family proceedings.
FPR 2010, PD 25D, para 3.12(h) provides that in the draft order for permission to adduce expert evidence, the attendance of the expert at court to give oral evidence must be dealt with, or that alternatively, the expert gives their evidence in writing or remotely by video link, whether at or for the final hearing or another hearing. Presumably therefore the court may revisit its earlier directions, using its case management powers, and make revised provision for the giving of expert evidence where appropriate.
While video hearings have been piloted in some family courts, the President of the Family Division, Sir Andrew McFarlane, has indicated that such hearings will not normally be appropriate for contested cases involving the giving of oral evidence, for multi-party cases, for cases concerning litigants in person and for cases concerning children. In addition, the President has said that family court litigants participating in any full video hearing should do so from authorised places such as a Citizens Advice Bureau or a solicitors’ office. See: Judges publish plans for 2019 in relation to online courts LNB News 08/01/2019 89. Guidance has been issued by HMCTS about how fully video hearings work and how to take part here. See also Practice Note: Pilot schemes in the Family Court—Fully video hearings.
Clients themselves may also be faced with a number of challenges in the coming weeks and months, for example as to their financial position if they are self employed or a business owner impacting on current negotiations or existing orders, or as to contact arrangements if they are self-isolating or there are concerns as to the health of a vulnerable family member. In some cases, social isolation may exacerbate domestic abuse situations. The current unique circumstances may, in due course, be dealt with in case law, but in the intervening period the existing law provides remedies. See for example Practice Notes:
- in relation to a change in financial circumstances: Periodical payments—variation of orders, Periodical payments—variation—procedure and Setting aside financial orders including Barder events where no error of the court alleged
- regarding contact arrangements: Child arrangements orders—contact and Enforcing children orders (private law)
- in relation to domestic abuse: Non-molestation orders and Occupation orders