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The Virtual Family Court: The New Normal For Litigants, Judges and Family Lawyers

4 August 2020

Since the lockdown in March 2020, the Family Court and the Family Division of the High Court have been operating in a totally new way - almost overnight, they have gone virtual and virtual (rather than face-to-face/in person) court hearings have become the default position.

Similarly, issuing court applications and divorce petitions, filing documents and communicating with the court is now nearly all being done online, rather than by post/DX, or in person. Lodging bundles of court documents for the use of judges conducting court hearings is now a thing of the past - instead, ebundles have to be filed digitally. All this has happened at a time when the family justice system was already under resourced and when the Family Court has been experiencing the same high volume of work they were dealing with pre-COVID, and in some areas of family law (such as domestic violence injunction applications) an increase in their workload.

It is clear from the helpful guidance and other communications that we have been receiving from the President of the Family Division, Sir Andrew McFarlane, and other senior members of the family law judiciary that “the need for stringent social distancing restrictions is likely to remain for many months to come” and also “it is unlikely that anything approaching a return to the normal court work environment will be achieved before the end of the year, or even the spring of 2021”. The attitude of the court has changed radically from the initial judicial attitude following the lockdown in March that it was appropriate to adjourn substantive hearings (especially final hearings), on the assumption that social distancing measures were only likely to be necessary for a few months or so, to judicial acceptance that the current restrictions will be our reality for the foreseeable future.

The shift to this virtual way of working has created massive challenges, not least because the Cloud Video Programme (“CVP”), the system for remote hearings intended to be used in all courts, which is gradually being rolled out by the Ministry of Justice, is not yet operational in the Family Court, or the Family Division of the High Court, although we are told that it will be available soon. In the meantime, remote court hearings have been taking place by telephone, and using various video platforms (including Zoom, Skype, Life-Size and Microsoft Teams), and also (much less frequently) in person, when it is considered necessary, so long as adequate arrangements can be put in place in the courtroom, to make it safe for the parties, their lawyers, the judge and court staff. Hybrid court hearings, where some parties attend the courtroom in person and some remotely, are also beginning to take place in some family courts.

The family court have had to prioritise their work, to ensure that their most urgent work gets done. This includes public law matters involving children at risk, domestic violence injunctions, urgent private law children matters, and issuing divorce petitions and decrees absolute. Financial applications are accorded a very low priority, meaning they will only be dealt with if there is enough time. There is strong risk of financial hearings (especially final hearings in such matters, which will have been listed for hearing many months previously) being adjourned shortly before the date of the hearing, due to lack of resources.

This very strange time has underlined more than ever the importance for clients and their lawyers to give active consideration to using non-court dispute resolution options, as a means of resolving the issues arising out of relationship breakdown. These non-court options include family mediation, arbitration, private financial dispute resolution hearings (“private FDRs”) and early neutral evaluation.

So far, all the virtual hearings I have attended have taken place in the Central Family Court (“CFC”,) where I mainly practice, as I am based in central London. All of them have been conducted by telephone, using the BT Meet Me system. Another hearing, which had originally been listed as a telephone hearing, then as a video hearing using Microsoft Teams, was changed back to BT Meet Me just the evening before, which my client (who was already very anxious about what would happen at the hearing) found stressful and upsetting. Both of us decided to wear dresses for the telephone hearing the following morning, just in case it got changed back to a video hearing at the last minute!

The telephone hearings I have attended have worked reasonably well (albeit I have been cut off several times during such hearings, which is unnerving) and for obvious reasons I have found it much more difficult to communicate effectively with the client and with counsel whilst the hearing has been going on. At the CFC, telephone hearings are listed at 1 ½ hour intervals and each judge dealing with such hearings has 4 cases to deal with each day, unless the judge otherwise directs a longer hearing. In some ways telephone hearings work more efficiently than court hearings under the old system, where everyone traditionally turns up at 10 AM, for a morning hearing or at 2 PM for an afternoon hearing, and then has to wait around to get to their place in judge’s list. Nearly all the telephone hearings I have participated in have started bang on time and lasted for their allocated 1 hour hearing time. If the case has gone on longer, the judge has helpfully allowed us to come back to finish off the hearing later on the same day.

Apart from struggling with the technology and the lack of administrative support resulting from working remotely from home, the aspect of this way of working that I have found most difficult is coping on my own, without the support of my colleagues. I am fortunate in that I am a member of a long established collaborative law pod group, all of whom are very experienced and senior family lawyers. Over the 8 or so years that our group has been established we have met up regularly, usually about once a month, over wine and nibbles to discuss practice issues. During lockdown we have switched to meeting fortnightly by Zoom to discuss our work and support one another, and these virtual discussion meetings have been invaluable to my well-being, as well as professional development.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Maeve O’Higgins or write to us using the contact form below.

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