THE EFFECT OF COVID-19 ON THE FAMILY COURTS

I have a court hearing in the next few weeks, will this still go ahead?

Ordinarily, hearings within the family courts take place in person at the court itself.  This is known as a “court based hearing” and necessitates the attendance of numerous people at the court itself.  As a minimum, this will include all parties to the proceedings and the judge and/or magistrates, but generally both parties will attend with their respective legal advisors, which can sometimes include multiple solicitors and barristers.

In light of the government guidance regarding social distancing and lockdown, the President of the Family Division, Sir Andrew McFarlane, has issued new guidance for the family courts about how court hearings will be handled during the crisis.

The guidance states that the default position is that all hearings should be undertaken remotely.  However, where there is a real need for a hearing to take place in person (i.e. when it is in the interests of fairness and justice) the court-based hearing option will remain open in these specific cases only, safety permitting.  Some but not all courts are being kept open for the purpose of dealing with these urgent matters. However, it is very clear from the guidance that the majority of hearings should now take place remotely without any physical attendance at the actual court.

What is a remote hearing, and how do remote hearings work?

Within the guidance, “remote hearings” can be conducted by any of the following means:

1. Email exchange between the court and the parties;
2. Telephone conference call;
3. Video conference call, using a number of platforms provided that the format is compliant with judicial requirements, with specific reference to the Skype for Business app which is installed on judicial laptops;
4. “any other appropriate means of remote communication, for example Facetime”

Whichever format is selected, the remote hearing must be recorded in the same way that it would be had the hearing been a court based hearing.  As with court based hearings, only the parties and their legal advisers are permitted to attend, and the judge should make efforts to ensure that no one else is able to hear or see the hearing taking place in order to preserve confidentiality.

What if my case is urgent?

The same principles apply to urgent cases as apply to general ones.  The guidance states that urgent hearings should also be conducted remotely, save for in situations where it is not possible to do so and where there is a pressing matter which needs immediate determination.  In this scenario, the court should do its best to facilitate an “in person” hearing but should take measures in order to observe the social distancing guidelines as far as possible within the courtroom.

Are there any drawbacks?

This new system is experiencing some teething problems in practice for many courts.

Some courts have been kept open, some have been classed as “staffed” which means that although no one can attend in person, the judges are available for remote hearings, and some courts have been closed altogether.  In addition to this, not all judges have judicial laptops, and no magistrates have them.

What this means is that those courts who do have the facilities are having to take on more cases, with priority being given to the urgent cases which cannot be delayed.  The knock-on effect of this is that many parties are finding that their long-awaited hearings are being adjourned at a late stage due to judge unavailability.

When a case is adjourned, it will generally be re-listed by the court for another date.  In some cases, the replacement hearings are being listed for several months down the line.  In one respect there are benefits to this, as for some it will hopefully mean that the strict measures preventing court based hearings will have been lifted or relaxed by the time the new court date comes around. However, in many cases, the practical implications of delaying progress of the matter and a resolution to the issue are substantial and can cause enormous emotional and financial strain for the entire family.

What are the options when my hearing has been delayed?

If your hearing has been adjourned and you do not want to wait, or indeed if you are reluctant to issue proceedings at all in view of the projected court delays, there are a number of alternative routes which can be considered.  The appropriate alternative will depend on the details and type of case, the approach of the parties and, if applicable, the type of hearing which has been adjourned.

Agreeing directions – In the case of an adjourned directions hearings, such as a First Hearing Dispute Resolution Appointment (FHDRA) in a private children matter, or a First Directions Appointment/First Appointment (FDA/FA) in a financial matter, it is often possible for the parties’ solicitors to agree the directions between them.  The agreed directions would then be drawn up into a consent order and sent to the court by email for approval by a judge.  If directions can be agreed, this is a relatively straightforward way to avoid the need for a hearing altogether and to expedite the matter and progress the case to the next stage.

Private hearings – Specifically in relation to Financial Dispute Resolution hearings (FDRs), the courts are actively encouraging parties to consider private FDRs.  A private FDR is the same as a court based FDR, save that the parties’ jointly hire a senior barrister to act as a judge to preside over the hearing.  The main benefit of this is time saving.  Whilst parties can wait months for a listing in a public court, private FDRs can generally be arranged in a matter of weeks.  In addition, unlike the courts, barristers’ chambers and solicitors’ firms are well equipped and practiced in holding conferences remotely.

For more complex and lengthier hearings, such as final hearings, there are also Alternative Dispute Resolution (ADR) approaches which may be appropriate, dependent on the circumstances.

Mediation – In some cases, generally those where both parties are keen to settle or agree matters between them, mediation or assisted mediation (for example hybrid mediation, where the parties are assisted by their solicitors throughout the process) may be an option.   Mediation is a process whereby the parties hire an independent mediator, who will work with both parties to try and facilitate a settlement agreement between them.

Arbitration – It may also be possible for the parties to agree to enter into binding arbitration.  Put very simply, much like with Private FDRs, when parties enter into arbitration they put their case to a privately hired judge, who will hear the evidence, adjudicate the matter, and provide a written judgment.  The parties will have agreed contractually in advance that they will be bound by the judge’s determination.  Although there is an additional cost for private arbitration, it is often possible to progress a matter more quickly to conclusion than when waiting for the matter to progress through the court system.

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