Updates in the Family Courts19th Jun 2020
Fact-finding and final welfare hearings
In the early weeks of the COVID-19 pandemic, most contested fact-finding or final welfare hearings in the Family Court were adjourned, in the expectation that normal working would resume relatively soon.
Given that social distancing restrictions are likely to remain in place for many months, it is unlikely that there will be a return to the normal court working environment before the end of 2020 or even the spring of 2021.
Where a child is the subject of court proceedings (section 1(2), Children Act 1989 or section 1(3), Adoption and Children Act 2002), for the sake of their welfare, final hearings now need to be fixed for remote or hybrid determination, rather than being adjourned.
A hybrid hearing is one where all or part of the hearing is held remotely, with some of the parties attending at court. Steps need to be taken to maximise the fairness of the process.
Apart from a dip in the first weeks of lockdown, the volume of applications being made in private and public law children cases has continued at pre-COVID-19 rates.
Applications for domestic abuse injunctions have risen significantly in certain inner city areas. Once social services are able to function more normally and more children return to school, the volume of child protection cases may surge.
During June, court buildings are being reopened so that by early July, the full Family Court estate should be open for public use, although the impact of social distancing will substantially reduce capacity. Much day-to-day work will have to be done remotely.
Where a suitable video platform is an available and viable option for a remote hearing, video, rather than telephone, should be used for the hearing.
The two video platforms currently supported by HMCTS are Skype and Cloud Video Platform (CVP). CVP is more effective than Skype and should be used where it is available. Where possible, courts should inform the parties which remote platform is to be used for any hearing at least three days before the hearing.
Careful consideration should be given to arranging for a lay 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.
Reducing the time courts give to hearings
Given the factors listed below, there needs to be a radical reduction in the time the court gives to each hearing:
The current restraints are likely to be in place for many months to come.
The volume of work in the system is very high.
The Family Court was not coping with the pre-COVID-19 workload.
The ability of the system to process cases is now compromised by the need to conduct most hearings remotely.
While there will be some capacity for the courts to conduct face-to-face hearings, the available facilities will be limited.
Remote hearings are likely to continue to be the predominant method of hearing for all cases, and not just case management or short hearings.
Delay in determining a case is likely to prejudice the welfare of the child, and all public law children cases are still expected to be completed within 26 weeks.
Adjourning cases indefinitely or for a period of many months will not, therefore, be an option.
Parties should expect the issues to be limited only to those that need to be determined for the disposal of a case, and for oral evidence and submissions to be limited to those that are necessary for the court to hear.
Importance of case management and COVID-19 checklist
Clear, focussed and robust case management will be vital in the coming months. The case management judge will need to bear in mind the overriding objective (Family Procedure Rule 1.1).
They will need to balance the welfare of the child, the need for a fair and just process, and limited resources of space, time and format, against the need to conclude proceedings.
Judges should consider whether giving a short judgment is sufficient in certain cases. A detailed recital of the evidence would not be required, except for those key elements that support the court’s findings and decision.