After a flurry of various pieces of interim guidance on how court hearings are to take place following the need to adhere to social distancing for the public protection, all hearings in the family courts are being held remotely. (Practitioners will find it useful to know that links to all Covid-19 related guidance has been curated and published on the Transparency Project website and is being added to).
Two key pieces of advice and information are worth highlighting here.
Mr Justice MacDonald issued version 3 of The Remote Access Family Court on 3 April (the first edition was published on 23 March). It notes the recent success of the first ever remote trial held via Skype for Business, in which Mostyn J conducted a contested Court of Protection hearing – it was a sad dispute involving the end of life arrangements for an elderly stroke victim.
Five parties and eleven witnesses were involved. The press were also able to attend the hearing remotely and to report it. John McKendrick QC at Outer Temple Chambers represented one of the parties and said he found it “a very positive experience”. However, he commented that there will be issues to be considered, such as litigants in person and parties who have little access to technology.
Included in the latest iteration of the guidance are the recent words of the President of the Family Division that “we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”
The aim of the guidance is to identify problems which arise from the urgent need for remote hearings, identify potential solutions and set out operational protocols to govern the position while further solutions are found (which will be included in subsequent versions of the guidance). As it is, the guidance is detailed and covers the statutory basis, applicable procedural rules and the associated challenges, as well as the specifics ranging from e-bundles, witnesses, use of interpreters and transparency.
The guidance states: “The reality is that for the foreseeable future remote hearings will become the norm and they must become the norm immediately.” However, there is a raft of urgent issues that need to be addressed. MacDonald J says: “Consideration will need to be given to establishing a body which will continue to work to solve these problems and which will then monitor the operation of the remote access Family Court with a view to making changes and additions where necessary.”
Child Arrangements Orders
The judiciary has, among the many other pieces of guidance so far published, produced general advice in relation to children subject to child arrangements orders (CAO).
Government has already given guidance on the impact of the lockdown to the effect that where a child’s parents are living apart and there is shared care, the children can move between the parent’s homes. However, they do not have to – which is vital because of mitigating the risk of infection.
According to the subsequent statement from President of the Family Division, there are parents whose children are the subject of CAOs made by the Family Court who have been concerned about their ability to meet the requirements of these court orders safely.
With parental responsibility being with the parents and not the court, it is expected that the parents will care for the children – “acting sensibly and safely when making decisions regarding the arrangements for their child, and deciding where and with whom their child spends time” and in accordance with the government’s ‘stay at home rules’.
The President gives generalised advice to parents that any decision about moving a child must take into account the child’s health, the risk of infection and whether any vulnerable individuals are in one of the households. The best way to deal with these difficult times will be for parents to communicate with one another about their worries, and to consider a good, practical solution.
Even if some parents think it is safe for contact to take place, it might be entirely reasonable for the other parent to be genuinely worried about this. Family lawyers may have to provide reassurance at what is very stressful time, alongside specific legal advice to a parent as to how they should respond if they are concerned at the prospect of a child moving between two properties for health reasons.
Sir McFarlane points out that a CAO can be temporarily varied but a sensible piece of advice is that each parent should record such an agreement. If agreement cannot be reached, and one parent is particularly concerned about the arrangements in this pandemic, they can vary it to one they consider safe in accordance with their parental responsibility.
But they should understand that if the court becomes involved at a later stage, it will consider whether the parent acted reasonably and sensibly at the time.
If this all means one of the parents misses out on having their physical time with their children, the other parents must ensure they facilitate alternative arrangements. The obvious solution is remote contact via by Face-Time, WhatsApp Face-Time, Skype, Zoom or other video connection, or by telephone if that’s not possible.
As Sir MacFarlane reiterates: “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.”
In some instances, particularly where there are likely to be heightened tensions, family lawyers may feel the need to consider mediation between the parents to resolve an impasse. This, of course, could also be conducted remotely and may be best route for parents to follow if it can be promptly arranged.