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 parties safe from infection. Therefore, they are 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.
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 and how?
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 video link or telephone. Some final hearings are also being dealt with remotely, or are hybrid hearings, where it is judged that some people actually need to be in the court building whilst others can attend remotely.
I want to be part of my hearing. Can I join in on Skype or Microsoft Teams?
Most parties will now be able to attend hearings remotely, depending upon their access to the necessary technology. All those involved in the justice system continue to do what they can to ensure that hearings can take place and that those who need to be present are.
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, and that no one who is not a party to the proceedings, or a witness, is present.
How will witnesses give evidence?
Cases requiring oral evidence will be dealt with by the giving of video evidence but if this is not possible, then a witness may be asked to attend court. Courts are now making regular use of Teams technology to enable remote hearings, including final hearings, to take place.
Is anyone going to court at all?
During the first lockdown this attendance at court was rare. However, as the courts have adjusted to the need for social distancing, hand washing and other safety precautions there have been some Family Court hearings taking place. That said, safety remains under constant review with new requirements being introduced, which now includes a trail of requiring all who attend court to take a Covid test before doing so. At the time of writing this has not been introduced nationwide, but it may be.
What about hearings with litigants in person?
In the first wave of guidance from the Government on 16 March 2020 it looked possible that hearings with litigants in person might go ahead through necessity, given the difficulties in ensuring that all those representing themselves had adequate technology for hearings. However, the tighter social distancing guidelines issued by the Government meant even those hearings were unlikely to be permissible in person, save in exceptional circumstances.
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, and, increasingly, Microsoft Teams is the technology chosen.
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, in the main, operating successfully.
How long will it be like this?
Well, your guess Is probably as good as ours, but the good news is that the vaccine role out should mean an end will soon be in sight.
That said, many of the new developments may well become the default option for shorter hearings, without witnesses, 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.
Experience thus far suggests that such hearings are more likely to take place on time, so less time Is wasted, which is good for all.
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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 27 January 2021