Maria Scotland – Joint Head of the Family Team:
I was called to the Bar of England & Wales at Gray’s Inn in October 1995. I don’t think I have paused to reflect on the changes at the family bar over my 25 years practice … that is until now, when the whole world was caused to pause and draw breath. The family courts closed as the government locked the country down in March 2020 but then opened up remotely. As the government lockdown is lifted this article considers where we came from prior to the health pandemic, the remote family court during the lockdown and where we may be going in the future.
In March 2020 the UK government imposed a stay at home order, which became otherwise known as "Stay Home, Protect the NHS, Save Lives," which banned all non-essential travel and contact and shut the courts. The self-employed Bar was seemingly out of work until on the 19th March 2020, Sir Andrew McFarlane, the President of the family court, published version 1 of National Guidance for the Family Court (together with the guidance of Mr. Justice Mostyn in the financial courts) setting out how the family court was going to operate remotely during the health pandemic. There followed a further four versions and on the 26th June 2020 version 5 of the guidance was published. Each version identifies issues as they arise in the remote family court over time, solutions and appropriate guidance. It is quite surreal the changes that have taken place in the family court operations and rules between version 1 (19th March 2020) and version 5 (26th June 2020).
In the space of just 6 months, our lives have changed irrevocably, in ways outside our control and the family court has adapted to accommodate “the new world”, rather than resisting the changes.
My last day in a court building
My last day in a physical court building was on the 18th March 2020 and I have not been in a court building since then, but I have spent many days in the remote court.
New Routines and Skills Acquired
I rarely rise before 8 am now that I am remote working. I have taken to wearing a new uniform of tracksuits and leggings with matching smart-looking tops (for video). Light greys are my new acquired taste. I sit down at my computer by 9 am and I am in court by 10 am or later. Since lockdown, I have not had one single physical bundle and accessed all papers digitally. I first experimented with PDF Expert before discovering Adobe Acrobat Pro. I am now totally au fait with e-bundles and can even make up my own.
The Zoom Effect
We all discovered Zoom in lockdown. Zoom has allowed me to spend time with my parents throughout lockdown and has kept me close to my clients and solicitors and the rest of the team. However, the downside of Zoom, I have never before been so aware of what I look like whilst working! The result is, post lockdown introduction to Zoom, I have started taking greater care over my beauty routine and I’ve bought a lot more makeup. I now sit in court or in conference each day in a lovely tracksuit (beige or grey) with well brushed hair and a full face of makeup.
Remote Hearings - The positive impact
- I have had greater and closer contact with my clients, professional and lay client, in the remote court because generally emotions, fear and tensions have all run higher.
- I have had far greater involvement in everyday matters, such as all solicitor’s correspondence and each decision due to greater fears of clients who appear to need more guidance and input from Counsel.
- Hearings have taken place (generally) at the time allotted, which is a welcome change and time estimates are kept to.
- The result is that there is far less, I would go so far as to say little to no, unnecessary time wasting in Counsel’s submissions and judicial indications/judgment.
- Further welcome changes have been the almost universal lack of interruptions by anyone when a party or the judge is speaking; again, which have served to cut court time.
- The last welcome and unexpected change in the remote family court is that my anxiety levels have dropped through the floor. I had not realised until now that I lived on adrenalin pre lockdown at work and that this affected my anxiety levels. This has changed for the better, as has my work: life balance.
What Next..Remote Court Guidance Version 5
So where are we going now that we are on remote court guidance version 5? The court is rolling out the Cloud Video Platform (CVP) for increased connectivity, speed of transacting and efficiency. I have had one trial using CVP and it worked extremely well and as with telephone and zoom hearings the trial started on time and everyone was incredibly on-point, so much so that the hearing ended on day 1 instead of the 2 days allocated.
For my part I cannot see the family court ever returning to operating as it did before the pandemic. In a jurisdiction where people have been, in any event, increasingly living their lives online and via digital platforms it would be nonsensical now that the judicial system has adapted to operating remotely during lockdown for it then to revert to paper, pen and court buildings post lockdown. The goal should be to keep going.
The family remote court opened when everything else was closed to enable the continued delivery of the justice system. Where we should and could go from here? Here are my own thoughts on our next steps:
The Remote Family Court
- Public courts are likely to be reserved for care cases, the Court of Protection and complex cases only,
- The family court will forevermore operate on a remote or hybrid basis; where a judge will ordinarily work in a court building and private children and financial court hearings will take place over telephone (BTMeet and its future incarnations) or video (CVP and incarnations).
- We will continue to meet our clients in the virtual space (over Zoom or telephone).
- It may well be the case that we would arrange to meet a client face to face, in the same business space, for final hearings so that we can attend a hybrid hearing with a judge sat in court from the same space.
- We may get to wear a suit/ smart work clothes again but generally work attire will forever be comfortable and we will continue to for the most part work from home.
- Working from home and remotely is likely to become the new normal. We will need to upgrade our tech and bandwidths and keep bang up to date with IT forevermore.
- I can well imagine Chambers branding will be less about a building number and street name and more about a website, app and online presence.
- As we all become remote workers, marketing budgets and PR will become more and more important in order to promote ourselves online.
- We will all become more active online and operate on the basis of dispensing our services remotely.
The financial remedies unit (“FRU”)
I anticipate that the FRU will eventually operate entirely remotely and possible changes include -
- The FDA will be a default paper exercise and only in exceptional circumstances will a (remote) hearing be listed and then only by application, and possibly applying for a hearing will attract a fee,
- The FDR will operate remotely. It may well be that the parties will have to pay a fee to have a hearing,
- Again, I can foresee that the parties will have to firstly persuade a court to list their application for final hearing and then such a listing will attract a separate court fee, which will increase depending on the time estimate.
- If listing an FDR and final hearing before a judge in the (remote) family court were to attract a separate court fee this may well mean that most parties will elect to have a private FDR or other ADR type hearing outside of the court arena in future,
- I can therefore finally foresee movement away from the family court determining financial applications and a far greater use of mediation and ADR. This will only happen if the default position in the FRU is that each stage of the process is a default paper exercise, rather than a hearing court, and the court system starts charging parties jointly to require a (remote or hybrid) hearing.
Algorithms and AI present huge opportunities to improve the family court
- I foresee a time in the future when all applications are issued online, which will be just the start of new processes for the family court administration.
Maria Scotland 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. Maria is the joint head of the Family Team at 5 St Andrew’s Hill.