Remote Access in the Family Court during the COVID-19 outbreak

On 23 March 2020 Mr Justice Macdonald published guidance regarding Remote Access in the Family Court during the COVID-19 outbreak, including a Protocol for both live and remote hearings. This was supplemented by further guidance on 25 March 2020 incorporated below.

Summarised by Shannon Woodley

PROTOCOL FOR REMOTE HEARINGS:

1. The court’s permission is still required for any part of the proceedings to be dealt with by way of remote hearing.
2. Instructions should be taken from clients in advance.
3. Evidence and other documents must be filed and served in accordance with the relevant case management order or PD.
4. There is no specific type of hearing which is or is not suitable for remote hearings, but it is anticipated that all case management hearings will be capable of being dealt with remotely. Multi-day final hearings may also be dealt with remotely.
5. There is no specific method of remote hearing, but there is a ‘smorgasbord’ of options available.
6. A preliminary hearing should take place in order to consider and settle on the identity of the communication platform to be used and resolve directions.
7. Parties should be ready to link at the listed time.
8. Where one or more of the parties is represented, responsibility for making the arrangements for the remote hearings in the case will fall on either the applicant or the first represented party. If no party is represented, the court will contact the parties and explain and send instructions.
9. The lead party must liaise with the court in advance of the remote hearing to deal with any technical issues.
10. Parties must agree, and the lead party must prepare and send the court an electronic bundle. It should be PDF, in a single file, searchable and paginated. This should be sent to the court on CE-file or a cloud-based link.
11. Listing should be at a specific time.
12. Where evidence is being given advance consideration needs to be given to documents being referred to. These should be agreed if possible.
13. Responsibility for recording the hearing will fall on the party or court that has organised the remote hearing. Anyone can record as long as they are a legal representative and they provide a link to the judge immediately following the hearing.
14. The clerk, court official or judge must complete the order made at the end of the remote hearing. The wording should be discussed and agreed before the link is terminated.
15. An electronic way to seal orders is now available to be done automatically on FamilyMan in the High Court. For the Family Division, if the court building is open, court staff can seal the orders but thought must be given to how to achieve this should the courts close.

PROTOCOL FOR LIVE HEARINGS:

1. A live hearing should only take place where a remote hearing is not possible and is sufficiently urgent to justify it.
2. All live hearings should have a time estimate of no more than 1 hour.
3. To reduce the length of any face-to-face hearing, submissions should be reduced to writing and the parties should only deal with those issues that are not capable of prior agreement.
4. There should be 2m between people in the queue to enter the court building and security.
5. No sharing of documents.
6. The layout of the courtroom must be arranged so that all present are 2m away from all others present.
7. No party is to enter the court room before their matter is called.
8. Parties are to leave the court room immediately after the hearing has concluded.

Further key points to note:

LEGAL AID

• Advocates meetings can be held over video and there is no longer a limit to how many can take place as long as it is directed by the court (this can be done by email) and in accordance with the PLO and the LAA have accepted this.
• They should use a free platform, but where this is not possible it can be claimed as a disbursement.
• If an advocates meeting leads to an agreed order, with no need for a hearing and a self-employed advocate has undertaken at least 30 mins of preparation for the hearing they are entitled to claim a payment for a one hour hearing if the cancelled hearing was an interim hearing and half of the final hearing fee if it was a final hearing.
• If the court directs an alternative method of hearing, the advocate will receive the appropriate fee as if the hearing had taken place.
• FAS forms are not required and instead all of the information required will be set out in the order.
• Bolt-ons can be claimed, but a note of the hearing to justify the claim should be uploaded.
• Where pre-hearing discussions take place, this will count towards time in the hearing if the judge attends to ensure everyone is present, absents themselves for pre-hearing discussions, and then re-joins the time will all be counted.
• Time spend after the hearing is finished to finalise terms of the order will also count toward the calculation of hearing time and can be done on a different platform.
• Where a remote hearing is conducted by email, the LAA will accept as evidence a court order setting out the start and finish time and the names of the advocates. If this is not in the order the LAA will expect advocates to self-certify and provide the email chains.

GENERAL

• There is no specific communication platform that should be used. Instead, advocates should agree from the ‘smorgasbord’ available including Teams, Skype for Business (although this is presenting issues of judicial computers) Zoom and Lifestyle.
• There are not specific types of hearings that can take place remotely. It is anticipated that all case management hearings can be done remotely, but also contested and multi-day hearings with live evidence have been successfully held remotely.
• If LIPs in private law proceedings do not have the technology, it should take place by telephone. This may limit the types of hearings that can be done remotely in this area.
• Parties to private proceedings should give consideration to arbitration.
• Judgments can be easily handed down remotely.

Park Square Barristers Family Team are conducting hearings using Skype for Business, Microsoft Teams and Zoom.

Contact the family clerks

Claudine Cooper on 0113 202 8604

Paul Foster on 0113 213 5209

Arnela Siranovic on 0113 213 5212