COVID-19 :GUIDANCE FOR THE FAMILY COURTS: REMOTE HEARINGS SHOULD BE THE NORM

Sir Andrew McFarlane, President of the Family Division, has issued guidance on procedure in the family courts. It stresses the importance of using remote hearings wherever possible.

“…there  is no category of case that may be listed in the Family Court which necessarily requires the physical attendance of key participants in the same courtroom.”

THE GUIDANCE

COVID 19: National Guidance for the Family Court
19th
March 2020
1. This Guidance, which is issued with the approval of the Lord Chief Justice and
the Senior Presiding Judge, is intended to be followed with immediate effect by
all levels of the Family Court and in the High Court Family Division.
2. The aim of the Guidance is to ‘Keep Business Going Safely’. There is a strong
public interest in the Family Justice System continuing to function as normally as
possible despite the present pandemic. At the same time, in accordance with
government guidance, there is a need for all reasonable and sensible precautions
to be taken to prevent infection and, in particular, to avoid non-essential
personal contact.
3. The government guidance is, however, primarily aimed at the social setting,
rather than the business/work environment. Depending on the circumstances
there may be the need, and no harm involved, in having a number of people
present in court for an oral hearing.
4. Taking these competing factors together, whilst the default position should be
that, for the time being, all Family Court hearings should be undertaken remotely
either via email, telephone, video or Skype, etc [‘remote hearing’], where the
requirements of fairness and justice require a court-based hearing, and it is safe
to conduct one, then a court-based hearing should take place.
The Rules
5. The Family Procedure Rules 2010 provide for the use of remote hearings in
appropriate cases. FPR, r 1.4(e) provides that the court must further the
Overriding Objective by making use of technology. FPR r 4.1(3)(e) provides that
the court may hold a hearing and receive evidence by telephone or by using any
other method of direct oral communication. In public law cases, FPR PD12A
para 24 requires that where facilities are available to the court and the parties,
the court should consider making full use of technology, including electronic
information exchange and video or telephone conferencing. FPR r 22.3 provides
that the court may allow a witness to give evidence through a video link or by
other means. Annex 3 to FPR PD22A provides detailed guidance as to how video
conferencing should be dealt with in court. Lastly, by r 4.3 the court may make
orders of its own initiative.
Remote Hearings
6. The facilities to enable remote hearings are discussed in more detail at paragraph
14.
7. In contrast to jury trials in the Crown Court, there is no category of case that
may be listed in the Family Court which necessarily requires the physical
attendance of key participants in the same courtroom. The determination of
whether or not a remote hearing is to take place will not therefore turn on the
estimated length of the hearing, but upon other case specific factors.
8. The following categories of hearing are suitable for remote hearing:
a. All directions and case management hearings;
b. Public Law Children:
i. Emergency Protection Orders
ii. Interim Care Orders
iii. Issue Resolution Hearings;
c. Private Law Children:
i. First Hearing Dispute Resolution Appointments
ii. Dispute Resolution Appointments
iii. Other interim hearings
iv. Simple short contested cases

d. Injunction applications where there is no evidence that is to be heard (or
only limited evidence).
e. Financial Cases [see the guidance issued for the Financial Remedies Court
by Mostyn J on 17th March at Appendix B below].
f. Appeals.
g. Other hearings as directed by the judge concerned.
9. Where a case in one of the categories listed in paragraph 8 above has already
been listed for a hearing at which the parties are due to attend court then, if it is
possible to make arrangements for the fixed hearing to be conducted remotely,
then the hearing should go ahead remotely without any personal attendance at
court. A draft directions order is at Appendix A below.
10. It is possible that other cases may also be suitable to be dealt with remotely. As
the current situation is changing so rapidly, and as the circumstances that will
impact upon this decision are likely to differ from court to court and from day
to day, the question of whether any particular case is heard remotely must be
determined on a case-by-case basis.
11. Where a case cannot be listed for a remote hearing as matters stand then any
existing listing should be adjourned and the case must be listed promptly for a
directions hearing, which should be conducted remotely. The primary aim of the
directions hearing should be to identify the optimal method of conducting the
court process in order to achieve a fair and just hearing of the issues but, at the
same time, minimising as much as possible the degree of inter-personal contact
between each participant. In appropriate cases, this may involve the use of a
remote hearing where it is possible to conduct the court process in a manner that
achieves a fair and just consideration of the issues. Recent experience has
demonstrated that it is possible to conduct a complicated extensive multi-party
hearing using the Business for Skype system that is available on the judicial laptop.
In other cases it may be necessary for the personal attendance at court, for some
or all of the hearing, by some or all of the participants.

12. At any directions hearing to discuss the future hearing arrangements, judges and
magistrates should also require the parties to focus on the realistic options that
are currently available to meet the child’s welfare needs during the present
straightened circumstances.
Urgent Cases
13. Even where a case is urgent, it should be possible for arrangements to be made
for it to be conducted remotely. The default position should be that the hearing
is conducted remotely. Where a case is genuinely urgent, and it is not possible to
conduct a remote hearing and there is a need for pressing issues to be determined,
then the court should endeavour to conduct a face-to-face hearing in
circumstances (in terms of the physical arrangement of the court room and in the
waiting area) which minimise the opportunity for infection.
Remote Hearings: technical matters
14. Remote hearings may be conducted using the following facilities as appropriate
to the individual case:
a. By way of an email exchange between the court and the parties;
b. By way of telephone using conference calling facilities;
c. By way of the court’s video-link system, if available;
d. The use of the Skype for Business App installed on judicial laptops;
e. Any other appropriate means of remote communication, for example BT
MeetMe or FaceTime.
The most recent HMCTS update on the use of video and telephone hearings
(issued on 18.3.20) during the coronavirus pandemic is at
https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-duringcoronavirus-outbreak
If you are unfamiliar with Skype there is a simple user guide on the Judicial
Intranet (under the Practical Matters tab, select Coronavirus (Covid-19) and
scroll down)

Page 5 of 9

15. Any arrangement for a remote hearing must make provision for the hearing to
be recorded. Where the hearing takes place with the judge/magistrates in a court
room, recording will take place in the ordinary manner. If BT Conferencing is
used for a telephone hearing then that system will produce a transcript of the
hearing. Where Skype for Business is used, there is a facility within the software
for the digital record of the hearing to be recorded (this is not the same as a
typed transcript but may suffice for most purposes).
16. The responsibility for making technical and other arrangements for a remote
hearing and for confirming the details of the arrangements for the hearing to the
other parties no later than 24 hours prior to the remote hearing taking place is
to be undertaken by the following party liaising with the court:
a. The local authority in a public law case;
b. The applicant, if legally represented, in a private law case;
c. The respondent, if legally represented and where the applicant is not, in
a private law case;
d. The court where no party is legally represented.
17. When conducting a remote hearing, there is a need for the judge or magistrates
to use their best endeavours to ensure that only those who would be allowed
into the court room for an oral hearing are privy to the remote hearing and that
all parties understand that the system used by the court will record the
proceedings and that no other recording is to be made by any of the parties.
18. On the day before a remote hearing the applicant must electronically file a PDF
bundle which complies with FPR PD27A, and which in any event must include
as a minimum:
a. A case summary and chronology;
b. The parties’ positions statements;
c. The previous orders that are relevant to the remote hearing;
d. All essential documents that the court requires to determine the issues that
fall for determination at the remote hearing;
e. A draft order;
f. Completed advocates’ forms together with the single address that the
signed and sealed forms are to be returned to for distribution to the
advocates.
Final Observation
19. These are exceptional and unprecedented times. The situation both nationally
and in each locality is changing daily, if not hourly. I am well aware of the
intensely difficult and highly stressful circumstances that all those working in the
Family Justice System are currently experiencing and I am greatly appreciative of
their commitment to the continued delivery of justice in circumstances which,
only a week or so ago, would have been considered unimaginable. This
Guidance is intended to deliver a very significant change of direction in the
method of working within the Family Court, whilst at the same time enabling us
to continue to operate and to meet the pressing needs of those who turn to the
court for protection and justice.
The Rt Hon Sir Andrew McFarlane
President of the Family Division and Head of Family Justice
19th March 2020

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