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Anaum Riaz

The Family Court and COVID-19 – UPDATE

As it becomes all the more apparent that national restrictions in response to COVID-19 are likely to remain with us to some degree in the long term, further guidance from the Family Court has come in the form of an updated guidance document from Sir Andrew McFarlane, President of the Family Division, ‘The Family Court and COVID 19: The Road Ahead’ on 9th June and the Court of Appeal judgement in the case of Re C (Children)(Covid-19: Representation) [2020] EWCA Civ 734. Both are summarised below.

The Family Court and COVID 19: The Road Ahead

Within the updating guidance, Sir Andrew McFarlane sets out a road map for family proceedings in the coming months, in view of the progress made with regard to remote hearings to date and the imminent re-opening of many courts across the country. The guidance is provided in light of it becoming clear that the timescale before the court may return to full and ordinary operation is expected to be no earlier than the end of 2020 or even spring of 2021.

Given the longer timescales, the President makes clear that apparent potential unfairness which justified a case being adjourned for what was hoped to be a relatively short period of time must now be re-evaluated against this much longer timescale. The need to achieve finality in decision-making for children and families, the detrimental effect of delay and overall impact on the wider system of an ever-growing backlog must form important elements of judicial decision making alongside the need for fairness to all parties. The President also notes that applications to the Family Court in both private and public law children cases have continued at pre-COVID rates.

The President stresses that the guidance provides signposting, not directions. Each judge, magistrate or legal adviser retains discretion to make bespoke case management decisions on a case by case basis, including whether hearings are to be wholly in person, remote or a hybrid. However, a greater focus will be placed in the coming weeks on hybrid hearings attended partly in person and partly remotely. Many changes have been made to court buildings and courtrooms to facilitate such hearings safely with appropriate social distancing. The President also confirms that the remote platforms currently supported by the court are Cloud Video Platform (CVP) and Skype for Business.

Overall, the President stresses the importance of clear, focussed and very robust case management. Parties will not be allowed to litigate every issue and present extensive overall evidence or oral submissions. The oral hearing will be limited to those issues necessary for determination by the court.

The guidance document can be found here.

Re C (Children)(Covid-19: Representation) [2020] EWCA Civ 734

This appeal arose from a decision to continue a fact-finding hearing by way of a hybrid hearing in care proceedings concerning 4 young children in circumstances where leading counsel for the mother could not be physically present at court due to being required to shield from COVID-19. The expert evidence had been heard remotely and the lay evidence was yet to be heard, in person. The trial judge had held that the hearing should continue with the mother’s leading counsel attending remotely, and considered that this did not encroach on the mother’s right to a fair hearing.

In the lead judgement given by Lord Justice Peter Jackson, the Court of Appeal dismissed the appeal brought by the mother. The Court of Appeal concluded that it is in the public interest and the interests of children and families that, wherever it can happen in a safe and fair manner, the work of the courts should continue. Within this particular case, the older 3 children had been in foster care for over a year, the youngest having been born into foster care. The Court considered the mother’s right to a fair hearing, guaranteed by common law and Article 6 ECHR, and determined:

  1. The fact that leading counsel cannot be physically present in court while other advocates can, is unfortunate but will not prevent the mother from participating effectively in the hearing. Perfection in the arrangements for a complex trial is not always achievable and the arrangements contemplated within this case comfortably satisfied the requirements for a fair hearing;
  2. There will be no inequality of arms – a difference in the way parties are represented does not of itself amount to inequality in convention terms. A socially-distanced hearing will emulate some but not all of the characteristics of a conventional hearing. The capacity for ‘immediate dynamic interaction’ is not an indispensable element of a fair trial;
  3. The reality of the arrangement does not give rise to any appearance of unfairness. There is no reason to downplay the effectiveness of remote examination and cross-examination y a skilled advocate. The judge will keep the fairness of proceedings under review.

The full case can be found here.

It is clear from this latest guidance that as it becomes all the more apparent that wholesale adjournment of all but the simplest case management hearings is not a realistic solution in view of the extensive delay for the children and families involved, the focus will be increasingly on robust case management and innovative solutions by way of remote and hybrid hearings. Whilst the right to a fair hearing for the parties remains an important consideration for the family court, there must always be a balance struck against the completing factor of minimising delay.

Contact Anaum’s clerks

Claudine Cooper on 0113 202 8604

Paul Foster on 0113 213 5209