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Remote Access Family Law
As family lawyers we continue to work remotely. We are able to continue to advise on all aspects of family issues, including separation, divorce, finances and children matters. We are also able to conduct mediation sessions using Zoom or other video conference calls.
However, there are a number of issues that the lockdown, economic uncertainty and the pandemic have caused in family matters:
- Any financial proposals for settlement should be withdrawn and reviewed given the impact on valuations of assets since the World Health Organisation announced the COVID-19 virus had reached a pandemic status.
- Share valuations, house prices, pension values and earning and mortgage capacities will all have been affected. There is no certainty of when the lockdown will be lifted and people are able to return to work, nor when the markets will recover. As a result, Form Es already completed will need to be amended and any Form Es completed in April / May 2020 are likely to need updating further within a short time. Consequently, most matrimonial financial cases will need to be postponed and the position reviewed periodically.
- The government (after some initial mixed messages) has confirmed that children under the age of 16 who have a shared care arrangement between separated/ divorced parents are able to move between the 2 households during the COVID-19 lockdown.
- There is of course concern for families where there are vulnerable parties who may be subjected to abuse. Abuse is not just physical abuse but includes mental abuse or harassment, financial abuse and exerting control over a person in this way and of course sexual abuse. The lockdown has seen a stark increase in calls to helplines, but this will not be the true full picture as many victims are unable to have sufficient freedom or indeed courage to get to a phone.
- The Court and Tribunal Service has closed more than half the court buildings and those that remain open have skeleton staff. There has been a drop too of less than half the number of litigation claims being issued than in February 2020.
Many listed court hearings will go ahead but via remote video conference calls or telephone. The department, HMCTS, will contact the parties to the case to seek to agree what platform to use for connection to the hearing. A paper issued by MacDonald J on Protocol for Remote Hearings was published on 23 March 2020. It recognised the urgent need to move to a default position of remote hearings and to set out operational protocols to govern the position.
The paper acknowledged that COVID-19 presents an unprecedented challenge to the provision of core public services that are traditionally delivered face to face, but that the advances in communications and technology made during the last 40 years allow the courts the opportunity to continue to provide these services through platforms that are readily available.
Indeed, Mostyn J successfully conducted a hearing within 5 days of the social distancing measures being announced. The case used Skype for Business. Mostyn J was able to complete, remotely, a final hearing involving five parties, taking evidence from eleven witnesses, including evidence from four expert witnesses. This remote hearing included the presence of the press, reporting it to the public.
You can use the following link of the case which was reported on in the Law Gazette (https://www.lawgazette.co.uk/practice/first-all-skype-trial-tests-crisis-working-at-cop-/5103541.article).
Of course, some cases may need to be adjourned because a remote hearing may be undesirable to go ahead.
The Coronavirus Act 2020 Part 1 deals with the use of video and audio technology in courts and tribunals during the outbreak. There is now a temporary modification of s 85 of the Courts Act 2003, which makes it an offence to record or transmit material from participation through a live link on penalty of a fine.
Rules of Procedure
- The Family Procedure Rules 2010 r 1.4(k) provide that the court must further the Overriding Objective to deal with the case justly by actively case managing proceedings, which includes making use of technology.
- FPR r 4.1(3)(e) provides that the court may hold a hearing and receive evidence by telephone or by using any other method of direct oral communication.
- FPR r 4.3 the court can order that the matter be dealt with remotely of its own motion.
- FPR r 22.3 provides that the court may allow a witness to give evidence through a video link or by other means.
- Annex 3 to FPR PD22A provides detailed guidance as to how video conferencing should be dealt with in court, however that guidance is not ideally suited to the current extreme circumstances rendered by COVID-19 that have generated the need to increase radically the number of remote hearings.
- s31B(4) of the Matrimonial and Family Proceedings Act 1984 could enable the Lord Chief Justice to empower a judge to hold a remote hearing from home or other non-court location.
There is an urgent need to consider how proceedings will be issued remotely if all courts in a given area are shut down and how orders will be drawn and sealed (Note the Clerk of the Rules advises that an electronic seal for the Family Division of the High Court is still some way off). Further, with the shutdown, assistance given to judges with respect to remote hearings will also itself need to be remote.
The judges are provided with laptops with Skype for Business and Microsoft Teams installed. These allow for document sharing and recordings during a remote hearing. However, there are multiple other platforms being used by lawyers and litigants which are not installed on judicial laptops and the judiciary would need to purchase licences for them. Zoom can be downloaded by judges for free but it is the lawyers who would need to set up the Zoom meeting and invite the judge as a guest.
Of course, paper bundles are incompatible with a remote hearing as a matter of logistics, but also presents a potential avenue of transmission of the virus. Therefore, an electronic bundle is an essential element of an effective remote hearing. FPR PD27A para 2.5 permits the use of e-bundles in a hearing before a High Court judge with that judge’s permission and in other cases or classes of case as have been approved by the Designated Family Judge.
Mostyn J has issued Financial Remedies Courts – e-bundles protocol dated 3 March 2020 which provides for the use of e-bundles in financial remedies cases.
The paper states that parties must agree and comply with COVID 19: National Guidance for the Family Court.
The following requirements must be followed:
- PDF format is to be used
- All documents are to be contained in one single PDF file
- The file must be searchable
- Pagination must be computer generated not hand-written:
- Original pagination must be by section and page number i.e. A1, A2, A3…. B1, B2 etc
- Insertions should use ‘legal’ numbering (e.g. B13.1, B13.2, B 13.3)
- Each section of the bundle, and each individual document referenced in the index, should be separately bookmarked
The electronic bundle must be filed via a cloud-based link (e.g. iCloud, OneDrive, Dropbox or Google Drive) rather than in a series of emails and should be provided to all other parties within the timescales provided by the relevant Practice Direction.
TV court dramas may well give an inaccurate but broad idea of what is expected. However, witnesses in family proceedings have far less idea of what is involved. With respect to the oath, the judge will more than likely administer the oath or take the affirmation from parties and witnesses in the absence of court staff linked to the remote hearing. A short form suggested is: “Do you swear or affirm to tell the truth, the whole truth and nothing but the truth?” There should, for obvious reasons, be no requirement at present to touch any Holy Book.
Litigants in Person
Of course, there has been a massive increase in litigants in person in the Family Court, consequent upon the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The challenges include:
- In cases in which neither party has a solicitor, if a remote hearing is to be held it will need to be set up by the court. If the court buildings are closed, then either a member of staff working remotely or the judge will be required to arrange the remote hearing.
- A significant amount of litigants in person may lack access to sophisticated communication platforms. In these circumstances hearings will need to be by telephone conferencing.
For telephone conferences the court arrange the call and dial out to all parties on the numbers provided and then the judge conducts the hearing. There is a facility to record. HMCTS pay the costs of the call and the telecommunications provider will send the court an audio file via email of the hearing and it is stored on the court system in much the say way as in court recordings. Transcripts are available in the same way as they are for normal court hearings in that they are sent to the panel of contracted transcribers.
The reality is that with immediate effect and for the foreseeable future remote hearings will become the norm. Clearly the following issues remain:
- The court's permission is still required for all or any part of the proceedings to be dealt with by way of remote hearing. This includes the identity of the lead party.
- It may be necessary for the initial hearing to take place by way of a telephone conference to address the future remote hearings case management.
- However, from the outset of proceedings the court and the parties must consider and settle on the identity of the communication platform that is to be used.
- Consideration will be needed on how proceedings will be issued remotely, and how orders will be drawn and sealed with court centres having been forced to close their doors.
- Parties will need to redouble their focus on identifying the issues that require to be dealt with at the hearing and their efforts to agree and narrow the issues.
- The remote hearing court listings will require a specified time with little or no option to extend the time estimate once it has commenced. This means time estimates must be met. Advocates and parties must be ready to commence the remote hearing at the listed time.
- Parties must be sympathetic and flexible regarding any technical difficulties that may be experienced by another party to proceedings.
- Where a face to face hearing is held the court will need to ensure strict measures of separation of people by at least 2 meters at all times within any part of the building and that there is a sufficient supply of hand wash and paper towels. There must be no sharing of documents.
For further information contact Ash Sanger or Esther Watton on 0845 217 1377 or use our on-line enquiry form, Ash Sanger is a Director and a Solicitor of England and Wales.