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How will social distancing affect the Family Court?



While lockdown is starting to ease it is becoming clear that the need for social distancing will continue for many months to come.  With this in mind, Victoria Cobham looks at a recent report ‘The Road Ahead’ by the President of the Family Division, Sir Andrew McFarlane, setting out how the Family Court in England and Wales will need to change to accommodate these new rules and impact this may have.

As lockdown eases the Family Court will start to move from working almost totally via remote hearings to a situation where at least some hearings can be either fully attended by all parties or ‘hybrid’ (where some of the parties attend and the remainder engage with the court process remotely).

The ability to have more hearings fully attended is a work in progress and will in part depend upon the availability of being able to create a COVID-safe working environment in courtrooms and court buildings. Throughout June court buildings are being gradually reopened so that, by early July, the full Family Court should be open for public use once more, although social distancing will substantially reduce capacity.  As such, remote hearings are still expected to be the predominant method for the foreseeable future.

Remote hearings

Lockdown has forced us all to learn new ways of working as video conferencing became the new normal for meetings. While Zoom has proved very popular with many users the judiciary do not current support use of this particular video option. The Cloud Video platform (CVP) is favoured and is being prepared for wide scale use across the jurisdictions.

CVP is already being used in a number of criminal courts and, from the week commencing the 8th of June, it is being rolled out to Family Court centres. Microsoft Teams is available for use by many judges.

Where a suitable video platform is an available and viable option, video, rather than telephone, is being used for the conduct of a remote hearing.

Legal & other support for parties

In the early days of lockdown the only option for a lay party to join a hearing was via phone or internet from their home. This often resulted in limited direct real-time contact with their legal team.

The subsequent easing of the lockdown has opened up options for enhancing the support that can be given to parties.

In all cases, thought should be given to arranging for a party to engage with the remote process from a location other than their home (for example a solicitor’s office, barrister’s chambers, room in a court building or a local authority facility) where they can be supported by at least one member of their legal team and, where appropriate, any interpreter or intermediary.

Alternative Dispute Resolution options

Apart from a dip in the first weeks of lockdown, the volume of applications being made to the Family Court has resumed to a pre-COVID rate.

Applications for domestic abuse injunctions have either remained at usual levels or have, in certain areas, significantly risen. It is anticipated that, once social services are able to function more normally and once more children come out of lockdown and return to school, the volume of child protection cases may also surge.

A return to normal working is not expected until before the end of 2020 or even spring 2021 and as such, remote hearings will continue to be the main format for hearings for some time.  Adjourning hearings until we return to normal working practices is no longer an option, especially if the case concerns the welfare of children.

The Court will also have to limit the time allotted to each case and limit the issues before it to those which are necessary to determine the application being made.  At a time when it is clear that the court will struggle to cope with the volume of cases in a restricted working environment and with limited resources, it is more important than ever to consider all forms of non-court dispute resolution including mediation, negotiation through solicitors or arbitration.

If you have a question about how social distancing may affect your case or would like to speak to our team please contact Victoria Cobham on 01749 324323 or email Victoria.cobham@mogersdrewett.com. We have all the processes in place to continue as normal during this crisis and are ready to help.