As many of you will know, Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, has released national guidance on COVID-19 (click here). The guidance is intended to be followed with immediate effect by all levels of the Family Court and in the High Court Family Division, and is intended to “keep business going safely”.
As the President outlines, “there is a strong public interest in the Family Justice System continuing to function as normally as possible despite the present pandemic. At the same time, in accordance with government guidance, there is a need for all reasonable and sensible precautions to be taken to prevent infection and, in particular, to avoid non-essential personal contact.”
In a nutshell, the guidance makes it clear that the default position for the time being should be that all Family Court hearings be undertaken remotely either via email, telephone, video or Skype etc.
If the requirements of fairness and justice compel the need for a court-based hearing, and it is safe to conduct one, a court-based hearing should take place.
This complements the guidance issued today by the Lord Chief Justice (click here), which states that, “hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety”.
Further guidance has been issued to all family and civil judges as to how such court-based hearings may be conducted, to ensure the safety of all (click here). These safeguards include:
How effectively and assiduously these safeguards will be implemented will remain to be seen.
For practitioners and lay clients dealing with financial remedies cases, very useful guidance has also been issued by Mr Justice Mostyn as the lead judge for the Financial Remedies Courts (click here).
Clearly, the events have continued to move at great speed, and as the spread of Covid-19 has continued to accelerate, we must all take precautions to avoid unnecessary contact. The situation has called for an urgent review of the arrangements in our courts, so as to ensure that court business does not grind to a halt and that the public (some of whom are extremely vulnerable) can still continue to access justice, without compromising on health and safety.
The legal profession has not unfortunately been uniform in its embrace of technology, and these challenging times will certainly involve a steep-learning curve for many who will now have to conduct the majority (if not all) hearings remotely, whether via telephone, Skype or some other means.
At Pump Court Chambers, we are thankfully equipped with the technology which enables us to conduct hearings remotely with ease. Indeed, I have very recently done so with great success, and at very short notice, in respect of a financial remedies case. The process required some planning in advance, but with a concerted effort by counsel, solicitors and the Court, we were able to conduct the hearing efficiently without requiring the physical presence of any of the parties, counsel or the Judge.
In addition to conducting hearings remotely, at Pump Court, we are also able to assist clients with alternative means of dispute resolution (ADR), whether it be private FDRs, mediations or arbitration, in both civil and family areas of practice. There is absolutely no reason why these forms of ADR cannot be conducted remotely as well, to be facilitated by chambers if need be. Indeed, the guidance by Mr Justice Mostyn, in respect of the financial remedies courts, states thus:
“Parties should be encouraged to have their FDRs done privately. Such private FDRs should routinely be done remotely. Most barristers’ chambers and solicitors’ offices have facilities to enable FDRs to be done remotely.”
Again, my own recent experience with private FDRs and arbitration is that these would offer a very attractive alternative to court-based litigation, given that some hearings will now inevitably have to be delayed due to Covid-19. Insofar as financial remedy hearings at the CFC are concerned, it is understood from the guidance issued for London FRC judges that directions will be issued in due course for all FDRs if possible to be dealt with by way of private FDR, to be conducted remotely. The court will allow all necessary time to enable this.”
This article is written by Jennifer Lee. Any questions or comments should be sent to firstname.lastname@example.org.