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Family law update during Coronavirus pandemic

Care, supervision and injunction applications in family law are being processed, but HM Courts and Tribunals Service (HMCTS) has reduced capacity due to the impact of the Coronavirus pandemic.

HMCTS implemented some simple changes on 31 May, in a bid to help speed up the court process for family law act injunctions and deliver a better national process, such as asking applicants to use specific wording which can be automatically picked up on emails to prioritise them.

One tip for lawyers which has been introduced is to send in orders to the court as Word documents so if granted the order can be simply sealed and emailed out.

During lockdown measures, C100 applications whereby applications are made for a court order to make arrangements for a child or resolve a dispute about their upbringing took a back seat under ‘work that we will do’, rather than ‘work that must be done’. HMCTS received a designated family judge report from all areas. It is now getting on top of backlogs and trying to deal with areas of concern.

Many C100 applications come through via the bulk scanning service and online applications, and the increase in digital applications has helped HMCTS continue to process this work remotely.

Most of the main application types in family have a digital channel which puts family in a good position. For example, HMCTS can move gatekeeping around, depending on judicial availability.

HMCTS has emphasised that the court service wants to see less and less paper.

The information outlined above is based on a presentation by Adam Lennon of the HM Courts and Tribunals Service (HMCTS) Development Directorate to the Family Law Committee of the Law Society on 20 May 2020 about HMCTS family law services and the effects of the coronavirus (COVID-19) pandemic.

HMCTS is publishing a weekly coronavirus update. Court users can sign up for this update by email.

Within the weekly update is a summary of family business priorities previously agreed with the President of the Family Division. It is separated into headings including: work that must be done, work that will be done, work that we will do our best to do and digital working.

Meanwhile, president of the family courts division Sir Andrew McFarlane has published ‘The Road Ahead’ in acknowledgement that ”whilst the situation of total lockdown may be gradually relaxed, the need for stringent social distancing restrictions is likely to remain for many months to come”.

”It now seems sensible to assume that social distancing restrictions will remain in place for many months and that it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021,” he said.

”The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties,” he added.

Sir Andrew McFarlane highlighted;

- Save for a dip in the first weeks of lockdown, the volume of applications being made to the Family Court in both private and public law children cases has continued at pre-COVID rates.

- Applications for domestic abuse injunctions have either remained at usual levels or have, in certain inner-city areas, significantly risen.

- It is anticipated that, once social services are able to function more normally and once more children come out of lockdown and return to school, the volume of child protection cases may surge.

- Prior to COVID 19, the Family Court was already attempting to process an unprecedented level of applications relating to children.

He added that while in the early days of lockdown, it was understandable and acceptable for cases to be adjourned for a short period in the hope that a more normal court process could then be undertaken. Now that we are facing many more months of straitened resources it is likely that nettles will need to be grasped for the sake of the child’s welfare, with final hearings fixed for remote or hybrid determination, and with steps taken to maximise the fairness of the process.

”Whilst a court is not required to hold the child’s welfare as the paramount consideration when making case management decisions, the child’s welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases,” he added.

The Family Court will now be moving from working almost totally via remote hearings to a situation where at least some hearings will be either fully attended by all parties or ‘hybrid’ (where some of the parties attend and the remainder engage with the court process remotely). This change in working practice will develop over time and is very much work in progress and will be dependent on the availability of a COVID-safe working environment in courtrooms and court buildings.

Sir Andrew McFarlane summarised the situation;
i. The current restraints (or variants of them) are likely to obtain for many months to come;
ii. The volume of work in the system is very high;
iii. The Family Court was not coping with the pre-COVID workload and radical steps aimed at changing professional culture and working practices were about to be launched when the pandemic struck;
iv. The ability of the system to process cases is now compromised by the need to conduct most hearings remotely;
v. Whilst there will be some capacity for the courts to conduct face-to-face hearings, the available facilities will be limited;
vi. Remote hearings are likely to continue to be the predominant method of hearing for all cases, and not just case management or short hearings;
vii. Delay in determining a case is likely to prejudice the welfare of the child and all public law children cases are still expected to be completed within 26 weeks;
viii. Adjourning cases indefinitely or for a period of many months will not, therefore, be an option

”If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear,” he said.

Clear, focussed and very robust management of cases will be vital in the coming months and adjourning the case to await a full face-to-face hearing is unlikely to be an option.

”It is impossible not to have been profoundly impressed by the endeavour of all involved in the past 10 weeks, be they staff members, professionals, lay parties or judiciary, in working so hard and so effectively to deliver an outcome in as many cases as possible. A ‘can do’ approach has been evident at all turns despite the very real difficulties that have been thrown up by the current crisis. 52.I am confident that this positive, problem solving, approach will continue to be seen throughout the period ahead in the Family Court, however long it may be,” he concluded.

The Family Court and COVID 19: The Road Ahead

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