Since the Prime Minister’s announcement on 23rd March 2020 that effectively put the UK in lockdown, the Government’s message has been very clear – stay at home.
Where does this leave you, if you have a court hearing that has already been listed to take place in court, or you have recently made a court application and are waiting for a date to be listed?
The President of the Family Division has now issued guidance on this point. The principle of the Family Court is to “Keep business going safely”. This means keeping the courts open and ensuring access to justice. However, it also means ensuring safety from infection for you, judges, court staff, lawyers and litigants (people attending court) whilst preserving the rule of law.
- Remote Hearings
It is clearly very important that families still have access to the justice system. For the time being, during this COVID-19 pandemic, all family court hearings should be undertaken remotely. This means that hearings can and will still go ahead, but they will take place using technology such as Skype, Zoom or other video conferencing, or on the telephone or by email.
- Which hearings will be held remotely
The Family Procedure Rules 2010 already allow the courts to use remote hearings in appropriate cases so many court buildings are already set up for this. It has been suggested the following are suitable for remote hearings:
- All 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 (FHDRA)
- Dispute Resolution Hearings
- Other interim hearings
- Simple short contested cases
- Injunction Applications (Non-molestation Orders and Occupation Orders) where little or no evidence is to be heard
- Financial cases
- First Appointments
- Financial Dispute Resolution cases (FDR)
- Other hearings as directed by the Judge
- All directions and case management hearings
- What do I do if I have a hearing listed?
If you have a hearing already listed which you are due to attend, you will need to speak to your solicitor if you are represented. If not, you will need to speak to the court. You need the court’s permission for the hearing to go ahead remotely (although they are unlikely to refuse such a request now).
If you have made the application, your solicitor will need to arrange with the court and all parties how the hearing is to proceed, for example via telephone or Skype. If you are not represented but the other party is, then their solicitor will need to make the arrangements. If no party is represented, the court will contact you and make the necessary arrangements for the hearing to go ahead remotely.
It may be that your hearing will be adjourned, even if it is for a short time, to allow the appropriate arrangements to be made for it to happen remotely, over the phone or Skype.
- How do remote hearings work?
Where a hearing is to take place remotely, it will still have to be confidential. This means you will need to make sure you are able to attend the hearing on the phone or video in a place that is private and cannot be overheard by anyone. It would not be appropriate for you to be involved in a hearing in a public space. The Judge will have to use best endeavours to ensure only those who would be allowed in the court room are involved in the hearing. This would be particularly important if you had children in the house with you. You would need to do your best to ensure they could not hear the court hearing.
- Financial Hearings
If you are involved in Financial Remedy Proceedings, the guidance is that the First Appointment can take place using paper (emails) only. This means that you and the other side (through solicitors if you have them) should agree directions prior to the hearing and email them to the court. For example, you can agree a date to answer questionnaires, or agree to instruct someone to value the family home.
The FDR (Financial Dispute Resolution) hearing should be done privately and remotely where possible. This means instructing a someone to act as a Judge (usually a barrister) to hear the case for you. This can be arranged in barristers’ chambers.
There may be some hearings that will need to be adjourned for longer periods of time because a remote hearing is not possible due to the nature of the case, number of parties and length of the hearing etc.
Where the requirements of fairness and justice require a court-based hearing, as long as it is safe to do so, a court-based hearing should go ahead. But appropriate safeguards must be put in place in accordance with Government advice and social distancing.
- Hearings will go ahead
Ultimately hearings already listed and yet to be listed can still go ahead but you will need to check to see if it is going ahead at the same time and day as already listed. It will be essential for all of us to prepare for these hearings to ensure they can go ahead by, for example, providing your solicitor or the court with your contact details to set up remote hearings and to establish if you have the necessary equipment for Skype or video conferencing and, if not, access to a phone for a telephone hearing. It is essential this information is available as soon as possible so the arrangements can be put in place for the hearing to go ahead remotely.
Parties will be encouraged to work hard prior to any hearings to identify the issues that need to be addressed in the hearing and use their best efforts to narrow any issues and make agreements wherever possible.
The court is also discouraging the use of paper at this time and is requesting that court bundles are emailed to the court. Your solicitor will be able to deal with this for you.