Due to the ongoing situation surrounding COVID-19 there have been some changes in relation to the way in which the Family Court will operate. Aaron Keene, Partner & Head of Family Law at Wilkes outlines some of the changes below and how they might affect you.
Hearings in the Family Court
Since 19th March, the Family Courts have been making changes to their operations, always with the aim of ‘keeping business going safely’, and the President of the Family Division, Sir Andrew McFarlane, stated that all Family Court hearings should be undertaken remotely – either via email, telephone, video, Skype or otherwise.
On Monday 23rd March, ahead of the Prime Minister announcing the nationwide lockdown, Mr Justice Macdonald, provided further guidance on ‘The Remote Access Family Court’ including a ‘Protocol for Remote Hearings in the Family Court and Family Division of the High Court’.
Whilst there is now a detailed procedure for remote hearings which we are studying and following here at Wilkes, there is no ‘one size fits all’ way of approaching remote hearings and no single software platform to be used. Parties are therefore able to choose from a range of different options in order to make remote hearings work best in the circumstances and fit with the needs of our clients.
Included in the types of cases suitable for remote hearings are: all directions and case management hearings; emergency protection orders; interim care orders; injunction applications; and financial cases. Even where a case is urgent, it should be possible for arrangements to be made for it to be conducted remotely. In all cases, provision is being made for E-bundles to be sent into the court.
A range of issues have been considered including access to technology and software to conduct hearings remotely, particularly operating licences, as well as some parties struggling with the rapid technological change that is having to take place. However, the first fully Skype based trial took place in the Court of Protection in front of Mr Justice Mostyn only last week and proved to be a successful test of the technology proving what is possible for the Family Courts.
Unfortunately, given the nature and risk presented by the COVID-19 outbreak, it must also be appreciated that there may be some cases that will need to be adjourned for longer periods of time because a remote hearing is not possible. From 19th March court staff are able to waive the application fee for an adjournment because of coronavirus in certain circumstances.
There is still an urgent need to consider, in respect of each court centre, how proceedings will be issued remotely if all courts in a given area are shut down and how orders will be drawn and sealed and we are expecting guidance to be provided by the Family Courts in due course.
Currently in the Birmingham Family Court, all hearings are to take place by telephone unless the Court informs you otherwise or you have made alternative arrangements with the Court. This is with a view to video or Skype hearings being introduced as soon as everything is in place. Overall, the objective is that the remote hearing should be as close as possible to the usual practice in court.
How does the lockdown affect you?
The government has issued guidance for separated families now that the country is under lockdown conditions being that where parents do not live in the same household, children under 18 can be moved between their parents’ homes.
The President of the Family Division and CAFCASS have also provided some further information and guidance to help get through these difficult circumstances where Child Arrangement Orders are in place.
Firstly, it is important to remember that the guidance does not mean that children must be moved between homes. The decision whether a child is to move between parental homes is for the child’s parents to make after a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other.
Where parents, acting in agreement, exercise their parental responsibility to conclude that the arrangements set out in a CAO should be temporarily varied they are free to do so. It would be sensible for each parent to record such an agreement in a note, email or text message sent to each other.
Where parents do not agree to vary the arrangements set out in a CAO, but one parent is sufficiently concerned that complying with the CAO arrangements would be against current Public Health England/Wales advice, then that parent may exercise their parental responsibility and vary the arrangement to one that they consider to be safe. If, after the event, the actions of a parent acting on their own in this way are questioned by the other parent in the Family Court, the court is likely to look to see whether each parent acted reasonably and sensibly in the light of the official advice and the Stay at Home Rules in place at that time, together with any specific evidence relating to the child or family.
Where, either as a result of parental agreement or as a result of one parent on their own varying the arrangements, a child does not get to spend time with the other parent as set down in the CAO, the courts will expect alternative arrangements to be made to establish and maintain regular contact between the child and the other parent within the Stay at Home Rules, for example remotely – by Face-Time, WhatsApp, Skype, Zoom or other video connection or, if that is not possible, by telephone.
The key message should be that, where Coronavirus restrictions cause the letter of a court order to be varied, the spirit of the order should nevertheless be delivered by making safe alternative arrangements for the child.
What remains to be said is that the situation is constantly evolving on a daily basis, if not hourly. At Wilkes our Family Law team are doing all they can over the coming days and weeks to keep you informed regarding the fast-moving landscape of Family Law during these unprecedented times and are on hand and ready to offer you the support that you need at this difficult time.
The Wilkes Partnership have a large team of Family Law experts on hand to assist you with any matter. To discuss any Family Law related matter please contact Aaron Keene on 0121 710 5947 or [email protected].