Social distancing and the Family Courts
Below is a list of frequently asked questions about Family Court hearings during the Covid-19 outbreak.
Will my hearing go ahead?
The Government considers that the justice system is an essential service which needs to try to keep operating during these difficult times. Every effort is being made to ensure that court hearings can go ahead.
However, compliance with government guidance on social distancing means huge changes across the board. The Family Courts are very aware of the need to keep judges, lawyers and litigants safe from infection. They are, therefore, following guidance to try to conduct hearings remotely without the need for people to attend the court building.
Priority is being given to urgent cases such as non-molestation orders, abduction cases, private law cases where one parent has stopped all contact, and cases involving the immediate removal of a child from his/her parents by the local authority. Many other cases are being adjourned or relisted for a short directions hearing instead.
Parties are being reminded these are unusual times and strongly urged to try to settle their issues, or at least agree short-term issues, without the need for a hearing at all.
What type of hearing will happen?
There is no set rule as to how or whether any particular hearing should be conducted. The decision will be left to the judge dealing with it. It is highly likely that all directions appointments, or those in which the judge is purely considering points of law from the advocates, will be dealt with remotely by telephone or video link.
Theoretically, provision has been made by the court service for essential live hearings to be conducted. However, in reality, the court is adjourning these where possible until either the guidance is lifted or provision for safe live hearings has been made. Those urgent cases which might require witnesses to give evidence are taking place remotely, if possible.
I want to be part of my hearing. Can I join in on Skype?
Initially, short directions hearings were taking place without litigants present and only advocates and the judge attending by Skype. This reduced the risk of illegal recording of hearings or non-parties listening in to hearings attended online.
However, it is understandable that litigants might feel they are being excluded from hearings at which they are entitled to be present. Therefore, increasingly they are joining the hearing by telephone so they can hear everything going on.
Judges will be strict to ensure individuals do not speak over one another during the hearing and to check that everyone understands the recording of hearings by individuals is not permitted.
How will witnesses give evidence?
As referred to above, many hearings with witnesses are being adjourned. In urgent cases requiring oral evidence, arrangements will be made for witnesses to give evidence remotely. Historically, this has happened with experts who are used to giving video evidence but it will in all likelihood soon become commonplace.
Currently, there is an issue as to a lack of availability of video suites from which witnesses can give evidence. Litigants requiring interpreters face issues of having to be socially distanced from interpreters, which needs urgent resolution.
For the time being, when witness evidence is urgently required in the hearing this can be given over the telephone, however undesirable it is for the truth of someone’s evidence to be assessed by hearing a voice alone.
Is anyone going to court at all?
In some circumstances a party might consider a hearing is urgent but cannot be dealt with fairly in a remote setting. They will refer this issue to a judge who may, in rare circumstances, authorise a hearing in person. Stringent guidelines will be in place to ensure social distancing, hand washing and other safety precautions are observed by all participants attending such a hearing.
What about hearings with litigants in person?
In the first wave of guidance from the Government on 16 March it looked possible that hearings with litigants in person might go ahead through necessity given the difficulties in ensuring those representing themselves had adequate technology for hearings. However, the tighter social distancing guidelines issued by the Government on 23 March have rendered even those hearings unlikely to be permissible in person.
What appears to be occurring across the board is an adjournment of hearings with litigants in person. These are substituted by a short 15 minute dial-in telephone hearing at which decisions can be taken by the judge as to when the case can safely be conducted in person and what further directions are required for it to go ahead at a future date.
Are video hearings safe and private?
In the wake of the data scandals of recent years, the courts will have been reluctant to dilute the very strict use of only accredited technology to take evidence and hear advocates remotely. Historically, only video links with secure ‘bridges’ were regularly permitted in court. The likes of Skype and Zoom videoconferencing were not considered acceptably secure.
However, the difficult decision has been taken that the need to keep the family justice system operational outweighs the security risks which are inherent in using off the shelf remote video conferencing methods. Already large numbers of shorter hearings involving advocates only have taken place using the likes of Skype.
There were also reservations about whether lawyers self-isolating in their rural homes would have sufficient bandwidth to support these hearings but anecdotally they are operating successfully.
How long will it be like this?
It is wholly unclear how long government guidance will remain in place and this will dictate, for the main, the duration of these measures. Contested hearings which would be difficult to hold remotely are still being listed in May, although the format they will take remains to be seen.
The success or otherwise of holding the remote hearings may also have an impact on how long judges continue to use them even after the immediate strict necessity is lifted. There is real potential that this may mark the beginning of a brave new world.
It is perfectly conceivable many of the new developments will remain in place for shorter and less contentious hearings in the future. Here in the West Country, where the public transport provision is so poor, this could be a welcome change for economic and social, not to mention environmental, reasons.
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This information is given to the best of our knowledge and does not constitute individual legal advice upon which you can rely. The situation relating to Covid-19 is constantly evolving and may have changed since this document was produced. For up to date advice on your own situation, please contact us before taking any action.
Last updated 3 April 2020