FLBA - Covid-19 Working practice Guidance

FLBA - Covid-19 Working practice Guidance thumbnail

The task of keeping “Court Business going safely” has been an ever evolving process over the last month as many families, practitioners, court staff and the Judiciary will attest to.

This continues to be an uncertain time especially for families whose hearings may well need to be adjourned so as to do justice to their individual cases. In some cases, the evolution of remote hearings and virtual platforms have been a success. In others, views have been mixed. There is a pressing need for all practitioners to provide their views in the survey being carried out by the Nuffield Family Justice Observatory so as to best inform the Family Division as to how matters should progress.

Below is a list of all the national Guidance along with hyperlinks that takes practitioners to where we are currently in light of the Coronavirus Pandemic:

Guidance From the President

¥ The President’s “National Guidance for the Family Court” 19 March 2020;

¥ The President’s Guidance on Compliance with Child Arrangements Orders, 24 March 2020;

¥ Letter from the Lord Chief Justice, Master of the Rolls, and President of the Family Division regarding Civil and Family hearings, April 2020;


Guidance From MacDonald J

¥ MacDonald J’s “The Remote Access Family Court” (version 4), 16 April 2020;


Recent Authority from the PFD relating to remote hearings

Re P (A Child: Remote Hearing) [2020] EWFC 32

In a Judgment published on 21 April 2020, the President made some clear and important observations on the appropriateness of remote hearings:

25. Turning to the particular case now before the court, although I am extremely aware of and sensitive to the position of this young girl and the negative impact that a decision to adjourn will have on her wellbeing and the potential for it to cause her emotional harm, I am very clear that this hearing has to be adjourned.  I make the decision also being aware of the impact that this will have professionally on all of those who have had this fixture booked in their professional diaries for a long time and who are now ready for the hearing to take place.  That cannot be a factor that weighs very significantly in the decision-making process but it is one of which I am aware.

26. The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely.  The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function.  The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court.  It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on.  It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment.  I do not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as I have indicated, the court with the parent.  I also consider that there is a significant risk that the process as a whole would not be fair.


Skype Hearings in the Court of Protection have also taken place:  CCG v. AF [2020] EWCOP 16:

This matter came before Mostyn J on 17 March 2020, concerning a dispute as to whether the end of life arrangements should be made for an elderly stroke victim. There were five parties, eleven witnesses, four experts and the press, who attended remotely using Skype for Business over 4 days.

Mostyn J commented that:  "The hearing was conducted almost like any other. Each witness was asked to swear/affirm their evidence. I ensured the witness could be clearly seen on everyone's devices. Each counsel could introduce themselves, so the witness knew who was asking the questions, and expert witnesses were dealt with in the same way. Using Skype allowed parties to share video evidence, and documents could be shared on screen and discussed. The hearing was recorded and shared with all parties."

Financial Remedy Guidance 

¥  Mostyn J’s Guidance for Financial Remedy Court Judges, 17 March 2020;

¥ Financial Remedy hearings listed in the Central Family Court between 6 April and 1 May 2020, issued on 30 March 2020;

¥ Mostyn J and HHJ Hess’ letter regarding Financial Remedy cases, 15 April 2020;


The Court of Protection Guidance

¥ Hayden J’s “Remote Access to the Court of Protection” Guidance, 31 March 2020;

 
International Child Abduction Proceedings

¥ Temporary Amendments to the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings, 26 March 2020;
 

Legal Aid/Remuneration

¥ Updated LAA guidance on Remote Family Hearings, version 2, 15 April 2020;

¥ LAA: Remote Family Hearings: Updated ways of working, version 1, 24 March 2020;


Electronic Library

¥ An electronic library of the national and local guidance (as set out above) and precedents for the Family Court in England & Wales can be viewed here: wmflba.co.uk


Wellbeing

¥  FLBA Wellbeing Resources, 15 April 2020;

¥ How to reduce your anxiety now (Covid 19), March 2020;

¥ wellbeingatthebar.co.uk


Naomi M Madderson