On the 16th March 2020 the Prime Minister introduced social distancing measures to keep the public safe from the COVID-19 pandemic. On Thursday the 19th March 2020 the President of the Family Court issued guidance with immediate effect moving the family justice system to a default remote access basis. On Monday the 23rd March 2020 the government introduced the ‘Stay and Home and away from Others Rules” and there followed the guidelines of Mr. Justice MacDonald identifying the problems which arise from the move to a default position of remote hearings, potential solutions and to operational protocols. it’s been quite a week in the Family Courts!

As we write, it is Friday the 27th March 2020 and the end of the first week of the remote access family court. There are 15 of us in the family team. This is our experience from week 1:

Maria Scotland

On Friday 20th March 2020 (day 1!) I was instructed in an application to enforce a financial order. At 9:30am the morning of the hearing, before I’d left for court, the court contacted my clerk to let him know the case was going to be heard remotely by telephone. I was given the judge’s clerk’s number and asked to call him at 2pm. Solicitor for the other side then called me to give me his Counsel’s contact details. Counsel and I exchanged notes and thereafter (by email) negotiated before reaching full agreement. After calling the judge’s clerk at 2pm we submitted a draft consent, which was approved within an hour by email from the judge. Throughout the day I took calls and texted my client, who was socially isolating and had not intended to attend court in any event.

Monday 23rd March 2020 – (day 2/ week 1) – We had our first team meeting by zoom, which was very successful. 13 of us joined the meeting plus the clerks and chambers’ managers.

My financial (FDR) case on Friday 27th March 2020 was adjourned by the court of its’ own motion. The parties only learned of this by receipt of the Notice/ Order received that morning by post on Wednesday 25th March 2020.

Thursday 26th March 2020 (day 5/ week 1) – I was instructed to attend an urgent Children’s Act directions hearing (concerning risk of child abduction to Iran). The hearing was heard remotely by telephone before a Recorder. We were not given a time slot and all parties assumed we would be heard at 10am. Pre-hearing telephone and text messages took place to narrow the issues. I sat waiting in front of my computer until just gone 3pm (when I was just about to give up waiting) when the judge’s clerk called me to join me into the telephone hearing with the parents and the judge. Lesson learned – in the same way that you wait to be called on at court you wait to be called at home for a remote hearing!

Save for my hearings I have been inundated with emails concerning upcoming FDAs and Direction hearings, well ahead of time, in an attempt to narrow issues if not agree consent directions orders in all cases with the other side.

My take home– the remote family court works really well. I also cannot now understand why we haven’t done this before and cannot see that we will move back to the “old system” It is early days and so much has been accomplished by the hard-working members of our judiciary, FLBA and other supporting staff in just 1 week. To you I am grateful, thank you.

Sarah Wood

Monday 23rd March 2020 – (day 2/ week 1) I physically attended at the CFC in an application by a litigant in person ex-husband who was seeking a third-party disclosure order in respect of my client’s new partner. Once at court the judge’s clerk arranged a remote telephone hearing between the applicant Husband, the judge and I (myself and the applicant Husband sat in separate conference rooms in the court building and the judge in the court room) and my client at home.

Background to the remote hearing:

  1. Following the President’s guidance issued last week I emailed the husband and asked him to consent to the hearing taking place remotely by telephone.  I drafted the consent order and offered to arrange the conference call – and pay for it.  He refused to agree;
  2. I had hoped that the Court would adopt the President’s guidance that where the parties are in person the Court should arrange the remote hearing.   My clerk emailed and spend hours on the phone to the CFC on Friday trying to find out what the format of the hearing would be but were unable to get any response to their calls or emails;
  3. The list came out on Friday evening showing that a physical hearing listed in the court,
  4. In light of the government advice and the President of the Family Court’s guidance that came out on Friday evening I advised my vulnerable client from West Sussex not to attend;
  5. I attended Court from my home in Hampshire. I was informed by the court clerk that the Judge was in the building, as was the applicant Husband.  I was told that there would be no physical hearing, as we would be too close to each other, and so a telephone hearing was arranged between us in the building (with me sitting in a conference room) with the three of us (plus my client in W. Sussex) on the telephone;
  6. The Court took telephone numbers and then dialled everyone into the remote hearing;

Save for this one remote hearing I have continued to work using zoom, WhatsApp and email.

My take home from this week’s experience is that working using platforms such as zoom and WhatsApp are very successful. In respect of court hearings, whilst my experience this week was a pain, I am not sure how else logistically a telephone hearing could have taken place as the Court didn’t have my telephone number or that of my client.  Even if they made a decision last Friday that it was to be a telephone hearing, I strongly suspect they would not have been able to inform my client of that in order to obtain her phone number. My sense is that in future the courts need to secure every party and legal reps telephone numbers prior to every hearing.

Sarah Fairbairn

Monday 23rd March 2020 – (day 2/ week 1) I was instructed to act for an applicant mother at a FHDRA listed at Luton Family Court. The clerks contacted the court in the morning to confirm it was listed and that parties were required to attend in person. He received confirmation that it was going ahead in person. I arrived at 12.30 pm for a 2 pm listing and was told that it had been dealt with administratively by the legal adviser that morning because there was no CAFCASS safeguarding letter and she didn't have any magistrates at court. Disappointing experience.

Thankfully, the rest of my week working remotely has been entirely successful. I have held several meetings using zoom and hosted a pub quiz for all of Chambers using zoom and raising money for Advocate in the process, with resounding success! We are organising a second round of Chambers pub quiz with all of our solicitors using zoom next week. If you’d like to join please contact me.

Jaqueline Julyan SC

Friday 20th March 2020 a hearing in Birmingham County Court, on a financial remedies matter. A physical hearing, but an order for the next hearing to be conducted remotely. I had to draft the order using the template for remote hearings issued the day before.

Wednesday 25th March 2020 a hearing in the RCJ was adjourned on Monday 23rd – the adjournment unrelated to the current national crisis, but by reason of the non-availability of an expert’s report.

A financial (FDA) case listed for Friday 27th March 2020 was adjourned by the court of its’ own motion, which was unnecessary, as this is a category of case that the President’s Guidance of 17 March 2020 listed as a hearing to be conducted remotely. Perhaps the Guidance had not filtered down to the lower courts?

Telephone conferences, paper advices and drafting of documentation have continued as usual and kept me busy whilst staying at home. The telephone conference, which was an exception in the past, is now of course, routine.

Gemma Lindfield

Thursday 19 March 2020 - On the morning of the 18th March 2020, it was communicated to my instructing solicitors that the directions hearing that I was due to attend the following day would take place by telephone. My phone number was provided by the court. At 17:10 the same day the court emailed to say that the managers wouldn’t use the new telephone conferencing equipment and that I would have to attend.

On the near-empty tube station the following day I emailed the court and asked for a reason as to why I could not attend by telephone. I was told that they were operating on a “business as usual” basis.  I asked for a reconsideration of the decision not to hold the hearing by telephone. I told them the time I would have to catch a train and that it would be helpful to know their decision before I embarked on my journey. Ten minutes into my journey I received an apology and was told that there was no reason why the hearing couldn’t be by telephone.  I was told that I should turn around if I can. The train was not stopping until my destination. The train was so empty that the attendant from First Class circulated the cheap seats and gave us water and biscuits, not limited to one pack per person either!

Once at court, I was relieved to see the comprehensive and helpful guidance from the President of the Family Division being circulated by the Family Law Bar Association. This was provided expeditiously and was very reassuring.

Friday 20 March 2020 - I attended a DRA in a private law matter by telephone. The District Judge was at court. My opponent, CAFCASS and I used “Pow Wow Now”. This worked well. There is a charge involved for using this service, so BT is preferable. I can envisage issues in some lay clients attending if there is a cost.

Tuesday 24 March 2020 - A public law matter listed for directions at the Central Family Court. The reason for this was unclear.

I have been able to continue advising clients in conference and have found that I have been very busy. There will inevitably be teething problems but if we all work together it will allow us to keep the Justice system afloat. Family lawyers represent the most vulnerable members of society. I am concerned about children who are at risk of harm an those who are spending increasing amounts of time with an abusive partner or family member. It is vital that we ensure that people do not fall between the gaps in this time of national crisis.

Alexandra Davey

On Monday 16th March 2020 (pre-Week 1!) - I commenced the second (non-consecutive) week of a public law fact-finding hearing involving six parties, six advocates, interpreters and witnesses, including two who were considered vulnerable. The following morning, on Tuesday 17th March, it was clear that everything had changed overnight. We were missing an interpreter, who had isolated with symptoms and the Local Authority’s offices had closed with a number of people reportedly showing symptoms. We have adjourned to 30th March 2020 to enable the parties to find a way to continue the case remotely.

On 26th March 2020 (Week 1, day 5),-  Another of my cases adjourned (to June) to permit all parties to agree a way of continuing the case using remote access. A number are of the parties are currently isolating. We are looking to continue the case by using 16-video links.

Hilary Lennox

My virtual experience has involved a High Court hearing using Skype for business. This was an emergency hearing which worked very well. There were 5 different parties/screens used. All the parties made the necessary submissions. The hearing was recorded by the Judge. The Judges clerk was with the Judge in the High Court. He said all rise at the end of the hearing and all the parties amusingly stood up on screen.

My second hearing was a Private Financial Dispute Resolution Appointment. This was originally listed on the Wednesday in court. The solicitors and counsel came together and arranged a private FDR for that Friday. This lasted all day and was very successful in terms of connection. All parties were using their laptops and all parties were seen on screen.  The software we used was Life size, which produced a virtual court room.

My client and solicitor were based in the West Coast of Ireland. This was a very successful outcome as Ireland was on lockdown before the UK with no prospect of my client attending court in London. The private FDR Judge recorded it from their end.  This case didn’t settle however the case may now move to final hearing without any long delay due to COVID 19. There was just one hiccup where my French bulldog Willow entered the screen and the Judge stopped to say “oh we have an intruder.” 

I attended for an Issues Resolution Hearing (IRH) by way of telephone conference. The parties started communicating by email and telephone in the morning. The Judge's clerk checked in by email to see how discussions were coming along. The Judge's clerk commenced the IRH hearing when we were all ready with 5 parties in total. The software we used was BT conferencing, which worked very well. In terms of legal aid - this was a legal aid matter so the necessary terms were included in the order setting out that this was a remote hearing. The parties agreed their times and bolt-ons without the necessity of the Judges signature on any FAS forms.

For my cases, it has been a positive experience with a real sense of collegiality within the legal profession. This no doubt gives us some insight into what perhaps lies ahead for family hearings.

The team of family law barristers at 5 SAH have specialist expertise in all areas of family law with a strong emphasis on practical advice, effective court advocacy and a focus at all times, on the outcome for the client. 

In the current circumstances, please make an enquiry via the direct contact details below of our specialist family clerks:

Dean Farlam:
Email: deanfarlam@5sah.co.uk
DDI: 02073325405 Mobile: 07595598889
 
Adam Murray:
Email: adam@5sah.co.uk
DDI: 02073325406 Mobile: 07515555407