“Virtually” Business as Usual

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By Tracey Dargan, Partner and Head of Divorce and Family

As the world gets to grips with the COVID-19 pandemic many will be wondering about the impact of the outbreak in family law and how the Family Courts will ensure that where safe, all hearings should go ahead. In rapid succession this week the Attorney General and the President of the Family Division have issued national guidance for the Family Court on how hearings will be dealt with going forwards.

Sir Andrew McFarlane P has issued COVID 19: National Guidance for the Family Court, which should be followed immediately by the Family Court and the High Court Family Division. This represents a significant change in the way hearings are conducted with it being the default position that all Family Court hearings should now be undertaken remotely, via email, telephone, video or Skype. It is noted however that, a court-based hearing should take place where fairness and justice require it, and it is safe to conduct one.

The following types of hearing will now routinely take place remotely:

  • Directions and case management hearings.
  • Public law children: emergency protection orders; interim care orders; issue resolution hearings.
  • Private law children: first hearing dispute resolution appointments; dispute resolution appointments; other interim hearings; simple short contested cases.
  • Injunction applications where there is no evidence (or limited evidence) to be heard.
  • Financial cases
  • Appeals.
  • Other hearings as directed by the judge involved.

In practice this will mean arrangements will need to be made early on to ensure that conferences take place virtually and that all parties have access to the tools being used by the courts. At the moment we are told all Judges will be using Skype for Business and many Barristers and solicitors are using Zoom which has the benefit of allowing break out room style conversations. These are early days but already some real positive success stories are coming to light where directions hearings and trials are being dealt with by video conference or by phone and in some cases progress is being made more quickly and efficiently than if people were to attend court.

We all need to be aware however that there will be teething issues and that some court centres are adjourning cases until they are able to update their electronic systems. With that in mind, Mostyn J has given a clear procedural steer as to the how financial remedies cases should be dealt with (Legal update, COVID-19: Financial Remedies Courts guidance issued).

The guidance also emphasises that remote hearings should be recorded by the court, and clarifies who is responsible for making technical and other arrangements for the hearing and confirming the arrangements to parties and also provides that there are electronic bundles filed in advance.

While each court centre is issuing slightly different guidance, the overall message is clear: the justice system is determined to ensure that cases are dealt with effectively and promptly providing it is safe to do so.

The guidance makes it clear that where a remote hearing cannot be conducted, and there are urgent issues to be decided the court will need to minimise the opportunity for infection in the physical arrangement of the court room and waiting area.

It is of real significance that that the recommendation in financial cases is that Financial Dispute Resolution hearings (FDRs) should now be conducted privately wherever possible to avoid delay.

If you need advice or assistance then please contact our Partner and Head of Divorce and Family, Tracey Dargan, on 01992 300333.