When will the family courts re-open to hear my case?
Family Law in Partnership director Elizabeth Fletcher considers whether the easing of lock-down measures will mean that the family courts will re-open to hear cases.
As the lockdown restrictions in England ease, the legal profession and judiciary as well as the court service are looking at how court buildings can also re-open successfully.
The Law Society published a letter of 12 May 2020 to the President of the Family Division detailing its views on whether national guidance for remote hearings in the Family Court during the COVID-19 pandemic should be issued. This follows on from the publication of the Nuffield Family Justice Observatory’s report about its two-week consultation on remote family hearings.
Since the lockdown began in March, most courts in England and Wales have closed and only a very small number have been conducting face to face hearings. There was a rushed attempt by the court service to introduce technology at the start of the lockdown; the courts had rarely conducted video or telephone hearings prior to this. In the ensuing crisis, many hearings were simply adjourned “to the Autumn”. Others have gone ahead remotely particularly when they were urgent – relating to domestic abuse injunctions, care proceedings or child arrangements orders.
The Nuffield Family Justice Observatory was instructed by the President of the Family Division to conduct research (by interviewing 1000 court users) on the outcomes and experiences of their court hearings held remotely in lockdown. Some of the results were startling, as litigants have struggled to access appropriate technology in private surroundings with legal advice in order that their hearings can proceed fairly.
As a result of these findings, the President asked the Law Society for its views on whether guidance should be issued on the appropriateness of hearings being conducted remotely and also what measures need to be put in place to allow the courts to safely re-open.
The Law Society has responded, and published a letter written to the President of the Family Division requesting that these decisions are looked at carefully. The Law Society considered that more guidance would not be helpful at this time because the picture is ever changing in terms of the lockdown provisions, and the availability of improved technology to enable remote hearings to take place more effectively. Instead The Law Society considers that judicial “top tips” and “best practice” would be more useful in helping the judiciary and practitioners make decisions on which hearings may go ahead now and which should be adjourned.
The Law Society has two concerns; firstly that by waiting until courts physically re-open to deal with cases, families and litigants could be severely impacted by a lack of resolution. However, by opening the courts, not only litigants but legal practitioners are potentially at risk.
The Law Society considers that a checklist of factors should be taken into account when deciding to hold a hearing remotely:-
- Are the parties legally represented?
- Do they have good access to technology?
- Are interpreters required?
- Will there be cross examination of lay witnesses?
If the parties are legally represented and have good access to technology then that makes a successful remote hearing more likely. If interpreters are required or there is cross examination of lay witnesses to be done then that makes a fair hearing for the parties less likely. Non contentious directions hearings can progress fairly well, but more complicated longer hearings may be too difficult.
The Court Service or HMCTS as it is known, is in the process of introducing “CVP” or the Cloud Video Platform which provides a secure way of conducting hearings by video link and does not require extra software to be downloaded. This may provide a practical way forward. It will still be the case that hearings will have to be adjourned but the fewer that are adjourned, the more that families will be able to move forward with their lives.
The Law Society would obviously like the courts and solicitors’ offices to re-open soon but sees its duty to its members and to the public in ensuring that opening courts is safe for all court users.
Family Law in Partnership offers alternatives to clients faced with long court adjournments. Mediation can be a useful, confidential and without prejudice forum where parties can work out solutions to the issues they are facing. For those clients who wish a decision, then Family Law in Partnership has qualified arbitrators in both Finance and Children work who can swiftly assess the issues in a case and make a binding arbitration award. See our Arbitration page here for more information.
You may also wish to read our blog here which discusses alternative dispute resolution options, focusing primarily on Private FDRs outside the court arena.