Never before have I heard the word “unprecedented” been used so much in my life and never before has a word been more appropriate for what is happening in my life. For the events of this week have unprecedented, not just for me but for everyone and for Family law practitioners alike.
On Monday I at home was in despair: not due to illness but fretting about my working life and future income stream. “How could social distancing work in the Family Courts?” I asked myself, “It can’t!” I told myself and I panicked. I needed to find a new line of work! But then in the midst of all of the angst came certainty, clarity, hope and a new dawn in the form of the President’s National Guidance for the Family Court dated the 19th March 2020 together with the guidance of Mr. Justice Mostyn in the financial courts. Below is summarised not only the new guidance from Sir Andrew McFarlane affecting all case in the Family Court but the wider rules affecting access to the Family Courts after today and throughout this tumultuous time:
1) How do I now get divorced?
You can apply online for your divorce at www.gov.uk The online application process has been available for a while and is now rolled out nationwide. The court fee is £550. There are exemptions to this fee for those on low incomes or incapable of paying. The exemptions are set out on the form EX160, which must be completed at the same time as the petition is filed. Once the online process is completed the court will call to take the fee over the telephone. The court will then process the divorce petition right through from the application on D8 through decree nisi to decree absolute remotely/ without any face to face contact.
2) How do I apply for a child arrangement order/ PSO/ specific issue order (whilst locked down)?
You can similarly apply for orders relating to children online at the www.gov.uk website. However, the online process is only available in certain postcode areas otherwise the form needs to be downloaded and posted to your local court. My guess – this will change very soon and be available nationwide as in the case of the divorce process.
3) Where will my court hearings be and do I have to attend court?
As of the 19th March 2020, further to the National Guidance for the Family Court published by the President, all family court hearings will now be operated “remotely”, unless there are exceptional fact-specific factors in the case.
4) What does remote mean in the context of family court hearings?
Just that – at a social distance! By any of the following means: email, telephone, video link, Skype for Business, BT meet, BT Conferencing and/or FaceTime. Other services are being used.
5) What if I already have a court date?
All hearings can now be dealt with remotely. So any listed court dates/ hearings will now be dealt with remotely.
6) Who arranges the remote facilities?
The Applicant is in charge of arranging the remote facilities if they have a solicitor or else the Respondent if the applicant doesn’t have a solicitor or the court if both parties are litigants in person. This is similar to the previous normal rules concerning who was responsible for preparing the bundle in the case – the same party who was previously responsible for preparing the bundle in the case is now responsible for ensuring that the hearing is undertaken remotely/ at a social distance. Whichever party organises the remote facility must let the other parties/ the court know the details of how the hearing will be undertaken 24 hours in advance. So, for instance if the hearing is to use BT meet one can anticipate that the applicant will email all concerned in the case including the court with the telephone numbers and passwords etc for accessing the telephone hearing at the allocated start time and day. Most chambers and barristers are well versed in this system for telecoms in and about Chambers. This is now to be rolled out and operational for all court hearings in the family court save in exceptional circumstances.
7) What are “exceptional circumstances” in the context of requiring attendances at court for a hearing?
Truthfully, since the Guidance was published only yesterday as I write, this is an unknown however common sense and experience of 25-years in family law would tend to suggest that each case will turn on its’ fact specific needs. However, as a general rule one imagines if there are more than 2 parties in the case or more than 3 witnesses/ the case is complex case the court may well feel that personal attendances at court may be required subject to social distancing at this current time and providing everyone is fit and healthy. Generally, I would anticipate that the court will consider a face to face hearing only in these exceptional circumstances. Otherwise the court will use business for Skype systems which can meet “complex” needs in. remote settings.
8) What if my case is urgent?
The High Court already routinely have judges deal with urgent applications, where injunctions or emergency orders are needed, by telephone and the same system is to be operated in the lower courts, although one imagines this may well not be extended to the Lay Justices level.
9) What if my client or I cannot attend remotely because I am not tech savvy or some other reason?
The court will adjourn the hearing and list the case for a short directions hearing, which may be by telephone or email, to address the difficulties and consider how to dispense justice in the case fairly.
10) What happens in the remote hearing?
Again, since this is new ground the system is not yet tried and tested but it is not wholly unusual for the courts to have telephone hearings from time to time and experience shows that these run very well. The Judge and parties will dial in, if the hearing is by video or telephone, at the allocated time and the judge will direct proceedings “in the usual order” permitting parties to speak in turn of order and be heard by all other parties. All remote hearings will be recorded. If BT Conferencing is used for a telephone hearing then that system will produce a transcript of the hearing. Where Skype for Business is used there is a facility within the software for the digital record of the hearing to be recorded. This will in turn permit parties to appeal “in the usual way” using transcribed judgments.
11) What about bundles?
On the day before a remote hearing the applicant must electronically file a PDF bundle which complies with FPR PD27A. I pause here because this one directive does personally give me cause for concern - the day before is surely not sufficient time for the parties or the judge to digest the bundle in a hotly contested and/or complex case and I anticipate that this may be an area of “abuse” and need for change… we shall see!
12) What about financial cases?
Immediately following Sir Andrew McFarlane’s guidance Mr. Justice Mostyn, lead judge of the Financial Remedies Courts gave short, but equally informative and welcome guidance for those of us who undertake financial work. From now on all first hearings in financial cases are to be dealt by email only and all parties in FDRs are to be “encouraged” (I feel this translates as really meaning mandatory!) to arrange using a private FDR “judge” in chambers at the expense of the parties. Trials will be conducted remotely as in the family court and in accordance with guidance provided by the President above.
So, what does this mean? I feel this means that the long-overdue changes to the Family Court have happened in radical fashion overnight and I fully anticipate, with excitement, that normal practice will never be resumed as before. I fully anticipate that the family court will remain operating remotely well into the future when COVID-19 and social distancing are but a memory… and I welcome this. I anticipate that the court listing will operate more smoothly, more quickly but far more importantly with far better access to justice. Who would have thought that the word remote would mean in literal terms better access but I anticipate that this is just so. Byron James’ article published recently on Lexology online comes to mind when I consider this issue – he told us as a practising barrister in Dubai he has held conferences and attended hearings remotely from Dubai whilst his client and Counsel are in two separate jurisdictions. What was once novel will now be de rigour at the Bar and only in exceptional cases will attendance at court be required/ permitted. The current court system is an impediment to those with any physical or mental disability and that includes the lawyers operating within it. I know personally that the Bar is no place for those who suffer with any physical or mental incapacity or those caring for people with these conditions. The Bar has become less inclusive over my 25-years and made it impossible an area in which to thrive for anyone with impediments or the care of someone with an impediment.
Remotely accessing the court will mean the Bar will by its’ nature now include those it shut its’ doors to as they can join from home with any and all disabilities and permitting them to continue to care for those who need them and they love next door . I hope that this will mean too that this will also mean the decline and eventual demise of ranking and sectioning lawyers into elite and “not-so-elite”. Today is a fresh new start for the family Bar and it is also a very happy day in my house, where I sit socially isolated writing this article. Today my beautiful, very beloved youngest daughter, who has endured mainstream school from aged 4 with her own particular special needs received an unconditional offer to get into performing arts school, where the pressures of mainstream school will not exist and she can thrive in what she excels at. For me it means I will be free from being tied to ensuring I am at home to do school runs and be there for her .. at exactly the time the Bar has allowed me to work remotely. What a fresh new day!
Maria Scotland is the joint head of the Family Team at 5SAH and practices exclusively in family law with a specialism in high end/ big money financial remedy applications and (private law) children work. She accepts instructions to act through a solicitor or directly from members of the public on a Direct Access basis.
To discuss your case further with our dedicated family clerks, their full contact details are below: