Remote hearings in family law proceedings blog
23 / 06 / 2020
Remote hearings in family law private children proceedings
In family law Court proceedings, there has been ongoing (and regularly updated) guidance helpfully provided by the President of the Family Division detailing how the family Courts are dealing with matters (hearings, etc.) in the current coronavirus situation.
In part, guidance has been provided about what types of cases it was anticipated may be able to be heard remotely – i.e. by telephone or video link, rather than in-person at Court.
For example, the guidance from the President on 19 March 2020 confirmed that (as one example) simple, short contested cases fall into the category of cases where the presumption is that the hearings can be heard remotely. An example, could be a children matter where there are for example, just two witnesses (the Applicant and the Respondent) and there are no allegations of harm.
On 27 March 2020 the President confirmed that the “primary purpose as a Family Justice system… is to enable courts to deal with cases justly, having regard to the welfare issues involved” [FPR 2010, r 1.1 ‘the overriding objective’].
Further, Paragraph 11.1 (2) of Practice Direction 12B of the Family Procedure Rules (which govern the rules for family proceedings), is also absolutely clear that in these matters delay is likely to be prejudicial to the welfare of the child. Paragraph 11.2 (a) is also equally clear that when considering welfare issues involved the Court will ensure that the case is dealt with expeditiously and fairly.
It is therefore absolutely critical that Court hearings take place without delay wherever possible and it is for this reason therefore that remote hearings have been taking place (although some cases have unfortunately been adjourned until a later date).
When considering whether a case could be heard remotely, the relevant circumstances of that particular case should be considered such as (by way of just some examples) whether there are lay people who are expected to give oral evidence and whether, for example, the parties are:
- legally represented;
- capable of using technology;
- capable of giving instructions; and
- are able to engage with and follow a remote hearing meaningfully.
As mentioned above, the number of witnesses and whether there are any allegations of harm may be amongst other factors to consider. The complexity of the case and likely length of the hearing are others.
If it is deemed that a particular case is suitable to be heard on a remote basis, in order to assist with the remote hearing taking place, various procedures are put in place, including that:
- the Court is provided with contact details for all parties in advance;
- the relevant platform being used is also confirmed in advance of the hearing;
- all parties are provided with an electronic copy of the Court hearing bundle; and
- an advocates meeting (if one or more parties are legally represented) generally takes place in advance – the “meeting” here usually being over the telephone to discuss the forthcoming hearing to see if the issues can be narrowed in advance, amongst other matters.
I anticipate that many hearings may continue to be heard remotely – particularly in circumstances where it may allow the Court to deal with cases more swiftly and further, that they may continue to work well where everyone is becoming more au fait with the use of technology.
It is however certainly the case that remote hearings will not be suitable in every case.