Family Courts and The Road Ahead

11th June ‘20

In the news this week, Sir Andrew McFarlane, President of the Family Division published ‘The Road Ahead’ for the Family Court in England and Wales setting out a road-map of what the Family courts are likely to look like over the next six months.

Prior to the lockdown on 23rd March, the courts had very little in the way of guidance as to the remote administration of justice in the family courts in the event of a pandemic. ‘The Road Ahead’ reflects the evolution of recent updates and amends to some of the existing guidance over the past 3 months:

The Developing Guidance

It was made clear very early on (see the Guidance for the Family Court 19th March) that where necessary, hearings would continue to be heard remotely via software communication platforms. Where the requirements of fairness and justice required a court-based hearing, and it was safe to conduct one, then a court-based hearing should take place.

There was an acceptance that non-urgent hearings in the early days of the pandemic could be adjourned for a short period and relisted. Presumably the hope was that the social distancing measures would not be endured for too long and that in certain instances it might be unfair to one or more parties for a variety of reasons when conducting remote hearings. Broadly speaking all child related cases whether public/private law, injunctions to preclude domestic violence, some financial cases, appeals and any other cases requiring judicial attention could proceed by way of remote hearing at the discretion of the presiding judge.

The first major challenge faced has been to do with the technological issues experienced by all concerned with numerous platforms having been utilised with varying degrees of success. This highlighted the need to have one uniform platform that firstly aided the judiciary and secondly  enabled all parties to use with ease for the smooth running of hearings.

Guidance on Compliance with Child Arrangements

The initial mixed messaging was confused, with Michael Gove on 24th March telling viewers of Good Morning Britain that separated parents were not entitled to move children between their households and that they should remain with the guardian they were currently with now that restrictions on movement had been introduced. Michael Gove later issued an apology and clarified that “children under the age of 18 can see both parents.”

Later on the same day, the President, Sir Andrew MacFarlane issued general guidance on Child Arrangements Orders and their operation during the Covid-19 pandemic also confirming that children could be moved between households, but clarifying that this was not mandatory and much would turn on the particular circumstances faced by each separated family. Where one parent was sufficiently concerned, they were entitled to exercise their parental responsibility and vary the child arrangements in order to make them safe, even if the other parent did not agree. If this was subsequently questioned by the other parent before the court, then the Judge would need to ascertain whether the parents acted reasonably and sensibly in light of the stay at home rules.

Temporary Amendments to the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings

Further guidance was issued by the President on the 26th March concerning Temporary Amendments to the Guidance on Case Management and Mediation of International Child Abduction Proceedings. This set out welcome guidance on the interplay between different bodies to include the Legal Aid Agency and the issuing process for all applications.

President’s Guidance on Pronouncement of Decrees

This simply confirmed that it would not be possible for decrees nisi, decrees of judicial separation, conditional orders and separation orders to be heard in public during the pandemic. Parties could still give written notice in the normal manner if they wished to be heard, however, they were not to attend the hearing.

The Remote Access Family Court by Mr Justice McDonald

Version 4 of this document was finalised on 16th April  and dealt with the urgent need to move to the default position of remote hearings. In addition, it addresses the numerous challenges (on an ongoing basis) faced in delivering remote access to family law during this period of time. It is a lengthy document in its own right.

What Does the Immediate Future Look Like?

The President via ‘The Road Ahead’ attempts to chart the broad framework for the Family Court over the next 6 months. This is underpinned by the ideas that social distancing will be with us for a longer period than perhaps first envisaged and the need to deal with cases expeditiously (especially where children are concerned) and fairly for all parties while grappling with the issue of the ever-growing backlog.

The plan is to move away from working entirely by remote means to one where some hearings and gradually others are conducted at a court building either in full/partial attendance of the parties. Those that are not physically present would partake via the remote process. The underlying message being that normal service is unlikely to resume before the Spring of 2021, due to social distancing measures and the lack of resources that may need to be shared with other branches of the justice system.

The President went on to say that court buildings would be open to the public by early July. As with most of society there will be risk assessments of court rooms and limits on the amount of people that can attend the hearing. The same principle will apply to the waiting areas.

Remote Platforms

Picking up on the challenges faced to include the hierarchy of the various platforms identified by Mr Justice McDonald, The President indicated that Zoom (despite many users regarding it as the more effective platform) cannot be supported by the Judiciary and HMCTS. Instead the Cloud Video Platform (CVP) is being introduced to family court centres with immediate effect. Judges do have the ability to utilise Skype and Microsoft Teams. The courts where possible should inform the parties at least 3 days before the hearing which remote platform will be utilised.

Support for Lay Parties

It is recommended that thought be given to enabling a lay party to engage with the remote process from a location other than their homes e.g. solicitor’s office, barrister’s chambers, court room or a local authority facility. The intention is that the lay party can be supported by at least one member of their legal team and where applicable an interpreter. The latter issue is of some concern with the current social distancing rules, not to mention the delay that would ensue to remote hearings if all parties must wait for an interpreter to relay each sentence to the lay party before the evidence may proceed.

Alternative Dispute Resolution (ADR)

Given some of the issues that will be faced by the family courts in the coming months there is an obvious steer towards ADR. Consideration will need to be given to mediation, conciliation and arbitration where suitable in order to remove some of the strain from the court system.

The Road Ahead

‘The Road Ahead’ is thwart with difficulties – applications will need to be determined in timely fashion. The time afforded to hearings will be reduced in order to deal with those issues that need to be determined in order to fairly dispose of a case. This will apply across the board to written/oral evidence, submissions and judges are encouraged to provide shorter judgments while not necessarily compromising their analysis and reasoning when arriving at their decision. Ultimately with continued collaborations between the profession, court staff, judiciary and lay people we will return in the not so distant future to our ordinary form of work.

If you would like advice on this article or family issues generally please contact Naheed Taj, Head of Family at Calibrate Law.

This post is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. 

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