Our family law team look into family court hearings and how they are adapting to the current coronavirus guidelines, outlining the protocol for remote hearings and looking at the alternatives to court.
Most people have a general impression of what court hearings are like. Most of us got that impression from American legal dramas and, therefore, most of us have the completely wrong impression more so now than ever, with coronavirus sweeping the land and up ending our lives and systems everywhere.
Never have the family courts been more needed. Reports of domestic abuse figures having doubled or trebled under lockdown flood the media daily, and arrangements for children under lockdown can be complicated, to say the least. The pressure on families these days is extreme, and many need the help of the courts to resolve their difficulties.
Following the stringent social distancing measures introduced in March 2020, the President of the Family Division has issued guidance which, like all matters coronavirus, is updated regularly. The goal is to keep the Family Courts going, but to do so safely. This is an unprecedented challenge to a system which has for centuries relied on the personal attendance of those seeking to use it.
At short notice, the courts, like so many of us, have had to resort to largely technological solutions to try to continue to function meaningfully. This means going “virtual”, with hearings to be set up by telephone, Skype, and Zoom – with such technologies being rushed in to facilitate the hearings, the recording of hearings, and a suite of new rules governing how they should happen.
The process of trying to absorb these changes has been painful, with many court hearings adjourned – most with very little notice and confusion over paperwork all too common on those which do proceed. This latter issue has not been helped by virtue of the fact that many courts have been temporarily closed. This was of course inevitable. Like most of us, court staff and judges have been impacted by the need for social distancing measures and illness.
On 27 March 2020, courts were categorised as:
1) “Open”- hearings take place if that can be achieved safely;
2) “Staffed” – not open to the public, but may conduct remote hearings; or
3) “Suspended” – no staff or judges
A list of the family courts’ categorisations can be found here.
Until a centralised system can be implemented, different courts will have different technology and systems available to them, and each judge will make arrangements for hearings accordingly. Directions will be needed from the judge in each case to indicate how solicitors are expected to organise the paperwork into user-friendly bundles electronically, as well as when and how the hearing is to take place. So, if you have a hearing in the next few weeks, do not be surprised if arrangements change at the last minute, and be gentle with your solicitor when they tell you!
Matters suitable for remote hearings:
The recent guidance from the President of the Family Division has determined that almost all types of family court hearings are suitable for remote hearings. A list of those matter types can be found here at paragraph 8 of the guidance of the President of the Family Division on 19 March: Click here
Attending the hearing:
Certain complications arise from attending hearings “virtually”.
At face-to-face hearings, parties are usually able to use a side room to discuss matters with their legal representative out of the earshot of the other party. To some extent, this has been replicated in the technological solutions, which allow for remote “side rooms” within the main video conference, or alternatively separate video conferences can be set up, or conducted by telephone.
Although many people have access to smartphones or tablets, if any of the parties are unable to access video conferencing the court must consider if a telephone hearing is suitable. Courts that remain “open” may arrange for some parties to attend in person if that can be done safely and whilst observing social distancing measures.
Court hearings are recorded, and the recordings retained by the court. Recording remote hearings also raised IT issues, which have been considered by the judiciary. Rules are strict that court hearings must not be recorded by the parties and, whilst the hearing is in progress, parties must ensure that the hearing cannot be overheard nor viewed by others, including the children of the family.
Where there are young children or the home environment does not allow sufficient privacy, the issue of children not overhearing or viewing a remote hearing will be difficult for many parents. Social distancing prevents the usual arrangements for childcare. If this will present difficulties, the parties must inform the court at the earliest opportunity.
In normal circumstances, courts generally list certain hearings “back to back”, enabling one judge to hear several matters per day. Parties often must wait several hours to go before the judge while he/she deals with other cases, but it has generally been an efficient use of court time and reduced the overall waiting time for a court date. Remote hearings are less flexible. Currently, many courts are arranging two in the morning and two in the afternoon for each judge sitting, at specified times which have to be adhered to. This is a big change: previously, courts would generally list 3 or 4 hearings per hour.
The knock-on effect of reducing the number of courts sitting and the number of hearings per day is apparent. An already overloaded system is going to find hearings stacking up more and more, and delays waiting for hearings dates will be worse than ever.
Alternatives to Court:
Even before covid-19, courts have increasingly encouraged parties to consider alternative dispute resolution (“ADR”), instead of court proceedings. There has been a reluctance to embrace these changes, but in these new and challenging times there will surely be a greater recognition of the benefits. Indeed, we can expect pressure from judges for parties to attempt ADR rather than rely on the courts as a means of resolving their difficulties.
The methods of ADR available are:
- Mediation.
- Private Financial Dispute Resolution Hearings and early neutral evaluations.
- Arbitration.
- Roundtable meetings with solicitors and clients.
- Collaborative Law.
We discuss these options further in our forthcoming blog on ADR, but the key benefits are widely recognised to be savings in delay, time and costs, plus much greater flexibility in the process, which can be tailor-made to fit the circumstances of the case.
As with many areas of our lives at the moment, covid-19 will require everyone involved in court proceedings to make adjustments and unfortunately tolerate some delay. If you have any questions regarding the topic raised above please contact our family law team via email [email protected] or phone 01737 854 500.
Please note Wheelers Solicitors became part of the Morrisons Group in January 2020 – read more here.