Important information for all court users during the pandemic

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The President of the Family Division Sir Andrew McFarlane has set out how the Family Court intends to navigate its way through the Covid-19 pandemic.

In a document entitled ‘The Road Ahead’ the President explains that only now can we set out with any certainty what needs to be done to ensure that the Family Court continues to operate as best it can until the pandemic is over. The reason for this is that we have gained substantial experience of remote court hearings (dealt with by telephone or over the internet), and a better idea of how long social distancing restrictions are likely to be needed.

The information in the document is important, and could affect anyone involved in family court proceedings. Here is a summary of some of the main points that are of interest to litigants:

Timescale

Perhaps the biggest message to take from the document is that it is going to be a long time before the court is able to operate ‘normally’.

The President states:

“It now seems sensible to assume that social distancing restrictions will remain in place for many months and that it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021.”

Accordingly, it is likely that not just will existing cases be affected, but also any cases begun in the next six months, or more.

Many people who are concerned that remote hearings may be unfair have asked the court to adjourn hearings so that they can take place in court, after the restrictions have been lifted. Clearly, the court is unlikely now to agree to such adjournments, as the need to deal with cases quickly will often take precedence over any possible unfairness.

All court buildings reopening…remote hearings

It’s not all bad news, though. As the President explains, during June those court buildings that have been closed will be reopened, so that by July all court buildings should be open for public use once more subject, of course, to social distancing rules.

…but most hearings will still be conducted remotely

This does not, however, mean that all hearings will be taking place in court. On the contrary, most hearings will continue to be conducted remotely.

And this does not just mean preliminary hearings. In almost all cases, preliminary hearings take place prior to the final hearing, at which the court decides the case. Preliminary hearings are mainly used to determine what should happen before the final hearing takes place, in particular what evidence the court will require before it can make its decision.

For obvious reasons, it is generally thought that dealing with preliminary hearings remotely is less likely to cause problems. However, the President has made it clear that many final hearings will continue to be dealt with remotely as well.

Of course, there may still be situations where remote hearings will not be appropriate. For example, hearings where parents and/or other lay witnesses are to be called to give evidence may not be suitable. In such cases consideration must be given to there being a fully attended court hearing, or possibly a ‘hybrid’ hearing, where just the parent or witness attends court to give their evidence.

Making remote hearings as fair as possible

So remote hearings are likely to remain the norm, at least for the rest of the year.

However, the President has set out various ways in which remote hearings can be made as fair as possible.

These include: keeping the hearing to a reasonable length, and including short breaks; lawyers ‘meeting’ with their client both before the hearing to explain what is going to happen, and after the hearing to ‘de-brief’ their client; and ensuring that parties can give instructions to their lawyers during the hearing.

The President also makes it clear that: “at all times a remote hearing should be conducted with the degree of seriousness and respect that is evident at a fully attended hearing”.

Further information

If you want to read the President’s full document, you can find it here.

Otherwise, if you have any questions about how your case may be conducted, we would be happy to help – for details of how to contact us, see here.

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