PLP Family Team COVID-19 and our approach to the crisis.

First of all the PLP Family Team hope that those of you reading this, and your families, are well and stay well. As the President of the Family Division said in the National Guidance handed down yesterday, these are exceptional and unprecedented times. We will outline key parts of the Guidance and what we can do to assist you.  PLP Family Team and how we can help. We remain committed to offering an excellent service to clients and solicitors in a challenging time.  Many members of our team are still able to attend in person hearings where such remain listed. Members of the PLP team have been proactive in liaising directly with the local judiciary in relation to development of local practices in relation to remote hearings.   We anticipate some local guidance being provided from the judiciary in relation to the use of Skype for Business (see below – the suggested preferred method for video hearings). Our team is ready to use Skype for Business for remote hearings.  For conferences, meetings, private hearings and arbitration we have a variety of services to suit any specific requirements. We can offer: a)    Skype for business; b)    Microsoft Teams.  We are aware that many of our instructing solicitors also have this package; c)    Both our Leeds and Newcastle offices are equipped with full video conferencing facilities to allow for remote hearings and virtual meeting rooms. We can easily facilitate virtual meetings across the globe without the need for other users to have any specific software. We have also looked at the use of Zoom as an alternative should any solicitor wish to use this instead. Our members remain readily available to review cases and advise (now might be a good time to deal with that case that keeps going to the bottom of your to-do list?), draft pleadings and thresholds, advise in writing and by phone.  We continue to offer direct access.     Please contact our clerk mark.williams@parklaneplowden.co.uk who has been working stoically throughout and who can assist you in relation to any of the above.  New Guidance for the Family Court The Covid-19 National Guidance for the Family Court is intended to address the immediate difficulties faced by court users in the current crisis.  It endeavours to strike a balance, by avoiding face to face contact where possible whilst still ensuring that the family justice system continues to deal with cases, even if to a lesser degree and with a focus on shorter and more urgent hearings, it can be viewed here. As the President states, the Guidance “is intended to deliver a very significant change of direction in the method of working within the Family Court…”.  Looking at silver linings, albeit difficult in the current situation, family lawyers and judges will emerge from this crisis with greater openness to, and familiarity with, the use of technology to facilitate family justice. Changes in professional working practices and habits, enforced on us by the pandemic, may be long lasting. The following is a summary of the key developments brought by the Guidance. Will there be any hearings with physical attendance? The Guidance does not completely rule out face to face hearings.  The Guidance observes that the government guidance is 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.” Further it is stated “…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 possibility of some urgent hearings being in persons is contemplated (see below). What type of family hearing may be conducted remotely? The Guidance explains that determination of whether or not a remote hearing is to take place will not turn on the estimated length of the hearing, but upon other case specific factors. The following categories of hearing are suitable for remote hearing:

1. All directions and case management hearings;
2. Public Law Children:
3. Emergency Protection Orders
4. Interim Care Orders
5. Issue Resolution Hearings
6. Private Law Children:
7. First Hearing Dispute Resolution Appointments
8. Dispute Resolution Appointments
9. Other interim hearings
10. Simple short contested cases
11. Injunction applications where there is no evidence that is to be heard (or only limited evidence).
12. Financial Cases [see the guidance issued for the Financial Remedies Court by Mostyn J on 17th March at Appendix B to the President’s Guidance].
13. Appeals.
14. Other hearings as directed by the judge concerned.

The Guidance also contemplates the possibility that other cases outside the categories listed above may also be suitable to be dealt with remotely: “the question of whether any particular case is heard remotely must be determined on a case-by-case basis.” Where a case in one of these categories set out 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, the hearing should go ahead remotely without any personal attendance at court.  Over what sadly could be a long suspension of our usual working practices, it may be that the judiciary and practitioners become more confident in the use of technology to facilitate remote hearings and progressively more ambitious as to what hearings could be done in this way.  The Guidance states: “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.”  What if a remote hearing is not achievable? If it is not possible to have a remote hearing, then the Guidance explains that 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.” In relation to urgent hearings: “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.” How can we arrange a remote hearing in practice? Paragraph 14 of the Guidance sets out: “Remote hearings may be conducted using the following facilities as appropriate to the individual case:

1. By way of an email exchange between the court and the parties;
2. By way of telephone using conference calling facilities;
3. By way of the court’s video-link system, if available;
4. The use of the Skype for Business App installed on judicial laptops;
5. Any other appropriate means of remote communication, for example BT MeetMe or FaceTime.”

There must be provision for the hearing to be recorded. If BT Conferencing is used for a telephone hearing then that system will produce a transcript of the hearing. The Guidance states “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).”  Who must make the arrangements? The Guidance explains that 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:

1. The local authority in a public law case;
2. The applicant, if legally represented, in a private law case;
3. The respondent, if legally represented and where the applicant is not, in a private law case;
4. The court where no party is legally represented. 

What needs to be done prior to a remote hearing? Paragraph 18 of the Guidance sets out the steps that must be taken:

5. 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:
6. A case summary and chronology;
7. The parties’ positions statements;
8. The previous orders that are relevant to the remote hearing;
9. All essential documents that the court requires to determine the issues that fall for determination at the remote hearing;
10. A draft order;
11. Completed advocates’ forms together with the single address that the signed and sealed forms are to be returned to for distribution to the advocates.

The order A draft order, addressing issues pertaining to remote hearings, is annexed to the Guidance.  The West Yorkshire Designated Family Judge has already drafted a similar order for use in local cases.  Funding Much work still needs to be done, in liaison with the LAA to take into account, and ensure appropriate remuneration for, our changed working environment.   The FLBA has sent out a notice today confirming its ongoing and frequent communication with the LAA.  A meeting is to take place on Tuesday and they intend to seek regular meetings thereafter.  They are  raising issues such as whether advocates meetings  might appropriately attract a higher level of payment at this time and whether there should be a removal of the restriction on how many can be held.  There are wide ranging funding issues, beyond the scope of this short notice and we anticipate rapid developments in this regard.  In relation to whether FAS forms need to be signed, the FLBA has assisted by pointing out that this is already addressed in the Civil Finance Electronic Handbook, at paragraph 6.11, which states as follows:  "We do not require an advocates attendance form where a hearing is heard by telephone or video conference. In its place, the court order and attendance notes should be submitted to verify the hearing.” Attendance notes should include details of times, bolt ons etc. In public law cases the current arrangement will lead to very significant additional expense for Local Authorities.  Pending decision making in this regard it may be worthwhile practitioners providing that the issue of payment of the costs of a telephone hearing be considered at the next directions or CMH in your case. Where a telephone hearing is to be arranged, consider the possibility of advocates convening on the line prior to the Judge joining. Also be careful to ensure that an order reflects any additional attendance before the telephone hearing itself.  Pragmatism The Guidance states that “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.” Realistically it seems likely that the judiciary will exercise greater scrutiny as to the need to litigate issues.  Proportionality will inevitably be viewed through the prism of this crisis.  We can anticipate strict focus on the degree and extent to which live evidence will assist and a real focus on the length of hearings.  This scrutiny is likely to endure when we emerge from the crisis and the judiciary seek to address the inevitable back log of lengthier and complex cases.   Finally, best wishes to everyone and we hope to be able to see our friends and colleagues at Court as soon as ever possible.