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The Family Court and COVID-19 – Shining a light at ‘The Road Ahead’

How the Family Court is going to look and operate for the foreseeable

Sir Andrew McFarlane, President of the Family Division, published The Road Ahead  for the Family Court in England and Wales on 9th June 2020. The document is essential reading for all lawyers involved in Family Court proceedings, and was published just days after the Court of Appeal dealt with issues of remote advocacy and hybrid hearings in Re C (Children) (Covid-19: Representation) [2020] EWCA Civ 734.

The Road Ahead seeks to establish how the Family Court is going to look and operate for the foreseeable as it continues to adjust to the ‘new normal’ of remote working. The President writes:

“We have reached a juncture in the Family Court's journey through the COVID-19 crisis when it is both possible and necessary to take stock and to consider the road ahead … It is necessary to look at the road ahead because any earlier rose-tinted thoughts that 'this will all be over by July' have sadly evaporated and it is now clear that, whilst the situation of total lockdown may be gradually relaxed, the need for stringent social distancing restrictions is likely to remain for many months to come”.

Sir Andrew McFarlane’s road map provides a ‘COVID Case Management Checklist’ (at para 49) which emphasises the importance of the following:

  1. Narrowing of the issues – the focus will be increasingly on robust case management and innovative solutions prior to any hearing.
  2. Hearing format - whether the issues can be determined justly at a fully remote hearing. The use of remote platforms has been fundamental in the courts’ ability to work throughout the health pandemic. It remains the position that video hearings are preferable to telephone, though telephone hearings may be suitable for shorter case management hearings. IT services are being prepared by HMCTS for wider use and will remain available for some time yet and possibly a constant feature of the Family Court future. 
  3. Optimising fairness of remote hearings - active consideration of how best to optimise the fairness of remote hearings and how to enhance lay parties’ ability to engage in the hearing. This includes consideration of whether a party should attend from a location other than their home (such as a solicitor’s office or chambers) in order for them to have support available from a member of their legal team and any interpreter or intermediary that may be required.

The President tweaks key guidance sent to judges in the Family Division on 9 April 2020, advising that ‘consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing when parents or lay witnesses are called’. However, critically, the guidance states ‘where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child’s welfare, it is necessary to do so’.

Comment

Prior to COVID-19 the Family Court service was already bursting at the seams; attempting to process an unprecedented level of applications relating to children and in some courts there were significant periods of time between one hearing and the next.

The President highlights that ‘traffic is high’ and the health pandemic has not slowed this down. In fact, in some areas such as domestic violence related matters, some courts have seen an increase in private law applications. Furthermore, the judiciary are expecting a surge in child protection cases as we ease out of lockdown and Children’s Services are able to work more normally.

Consequently, the Family Court must now, for a sustained period, seek to achieve the fair, just and timely determination of a high volume of cases with radically reduced resources “in sub-optimal court settings”. One of the ways to seek to combat this issue will be a reduction in the time the court gives to each hearing and therefore clear, focused and robust case management is key.

As the country eases out of lockdown, we have an insight on what the ‘new normal’ will look like in family courts. It will be a world of hybrid hearings mixed with remote hearings, with some but probably not the majority physically attended. In determining the format a hearing should take, each judge or magistrate has the discretion to make bespoke case management decisions on a ‘case by case basis’ having regard to the child’s welfare, and the need to avoid delay. The 26-week statutory time-limit for completion of cases compels the President to advise that adjourning cases “indefinitely or for a period of many months”  is not an option.

Conclusion

It is clear from the President’s guidance that the court will have a wide discretion based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. Adjournments of all but the simplest case management hearings are not a realistic solution in view of the delay for the children and families involved, the focus will be increasingly on robust case management and innovative solutions by way of remote and hybrid hearings. Whilst the right to a fair hearing for the parties remains an important consideration for the family court, there must always be a balance against the competing factor of minimising delay.

If this topic raises any issues or concerns for you, please speak to the author Hayley Purcell, Associate Solicitor in the Child protection team, Regulatory department at hayley.purcell@weightmans.com or Martin English, Principal Associate at martin.english@weightmans.com.

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