STOP PRESS: Latest Report from the President of the Family Division anticipates Family Courts fully reopening by July

The latest report from MacFarlane J addresses the way forward in light of what is now expected to be significant social distancing measures remaining in place in the court systems in England and Wales until the end of 2020 or even Spring 2021.

In this report, the PFD draws on the Nuffield Family Justice Observatory Report and outlines changes to previous guidance regarding the fairness of remote hearings. The key piece of guidance to change is that hearings that were previously likely to be unsuitable for remote hearings, for example final hearings including oral evidence of lay parties, are now to be considered for the so-called ‘hybrid hearing’. The guidance recognises that such hearings are still unlikely to be unsuitable for ‘fully remote hearings’.

It is also made clear that active thought must be given to lay parties being able to engage in the proceedings from a location other than at home.

Throughout June, the PFD explains that Family Courts will be gradually reopening so that by early July, the Family Courts should be fully open for public use, however the impact of social distancing will remain for the foreseeable future.

It is also noted that the Family Courts may well be required to use the facilities of the Criminal and Civil courts and tribunals to ensure that social distancing can take place.

The report also addresses the use of remote platforms, stating that Zoom, whilst one of the most effective platforms, is not currently supported by the judiciary and HMCTS. The Cloud Video Platform is the preferred option by HMCTS for hearings where video attendance is required.

It is also anticipated that there will be a rise in the use of fee-paid judges to increase the resources of the Family Court in dealing with this changing landscape, and ensuring that the judges who need to remain working remotely can do so, and to deal with the current high volume of work that the Family Courts are seeing at present.

Advice for professionals is that:

  1. Adjourning cases indefinitely will not be an option, and
  2. Clear, focused and very robust case management will be vital.

The report also sets out a Covid-19 Case Management Checklist to help parties narrow the issues and determine the appropriate format of the hearing.

The overriding point to take from this is that these measures can be expected to continue until at least December 2020 and it will likely be many months before we can return to ‘normal’ court hearings. Practitioners will therefore be adapting now to the increased use of hybrid hearings as we expect courts to reopen at a reduced capacity later this month and into early July.