Since the UK was put into lockdown in the early weeks of March 2020, and all family court hearings stopped taking place in the court room, the legal world started to receive guidance upon guidance as to how to best deal with remote hearings which were to take place with extremely short notice.
The President of the Family Division, Sir Andrew McFarlane, issued guidance very quickly to try and help practitioners and judiciary alike as to how to best navigate hearings remotely. The guidance of 19 March 2020 was circulated around all social media platforms and the discretion within the guidance allowed for “any appropriate means of remote communication”.
Thankfully at NLS, we were able to set up every national branch office with a dedicated, secure telephone line that was capable of recording so that we were able to immediately manage the remote listings that were coming through. Many members of the judiciary were grateful that we were able to assist in the initial transition to remote hearings and remote listings took place in those initial weeks without any issue.
It has been impressive to see the courts, judiciary, barristers, solicitors & support staff adapt their way of working to keep the wheels of justice turning. Whilst there have been a few bumps along the way and some tension over what platforms could/should be used to host remote listings, in the main, one could say that we are now in the swing of all things remote.
For our part, at NLS, having 19 branch offices has seen additional challenges in managing this transition as each court across the country has responded to remote hearings differently, exercising discretion and expressing concern in respect of their local facilities and ability to move to remote listings. This has led to series upon series of local guidance that has been disseminated to all our staff as there has been no single approach to remote listings, making advising clients interesting to say the least. We have even had occurrences of hearings taking place without the advocate being dialled in despite those details being with the court. Aside from the obvious concerns that has seen very vulnerable clients without their representative on the call to carry out the advocacy, that vulnerable client has very suddenly had to deal with a hearing in person, unnecessarily, and causing distress in some instances.
Despite some hiccups like this, which were thankfully in the minority, we have continued to help a large number of existing clients with their existing court proceedings whilst also helping a significant number of new clients. For March and April we have managed to help the following new clients and have seen an increase in public children law cases for May’s stats so far. April was a particularly busy month for FLA enquiries as we are sadly all aware of the spiked increase in domestic abuse claims during the UK lockdown; a frightening reality for many families to be dealing with during an already very stressful and isolating time:
325 new clients – FLA injunctions
24 new clients – assisted in other areas of family law
372 new clients – FLA injunctions
28 new clients – assisted in other areas of family law
Fast forward through the blur that has been lockdown and working from home for many of us, we are now over 3 months into remote hearings and there has been a build up in the discussions as to how the easing of lockdown will change things again for the family court. There has been talk of hybrid hearings (some parties attending remotely and some attending in person) and also talk of return to the court room for face to face hearings where remote hearings are not deemed to be appropriate to manage certain cases.
I was somewhat surprised that despite all the discussions I had been following across various social media platforms, that a hearing I have listed on Monday 1June as a remote telephone hearing would now be taking place as a face to face hearing at the Central Family Court, London. The notice was sent through giving the parties just over one working day’s notice and indicated that if the parties agreed the case could be dealt with remotely, then the court had to be alerted to that agreement and the Judge would decide if it was appropriate to return to a remote listing. Reasons as to why any party could not attend a face to face hearing would have to be explained. The notice for the face to face hearing was received in my inbox at 16.07 yesterday. It was a surprise to all advocates and parties involved in the case and there was a real sense of anxiety and concern as to the safety of each advocate and lay/ professional person now required to attend the court room. Actually, on that case, we have written to the court confirming all parties agree the hearing should remain as a remote listing but we are yet to receive confirmation that it will revert to a remote hearing so it is all rather tense on that front.
The specifics of that case aside, I took to twitter and LinkedIn yesterday and expressed my concern at the court decision that it was suddenly safe to have us back in the court room from 1 June when the UK was still in lockdown, at that time (and this was prior to the announcements that came from No.10 at the 5pm briefing). In a country where families and friends are not meeting, schools have not yet returned and shops remain (for all non essential shops) closed, and the number of deaths for covid19 yesterday being at 377, with 1887 new reported cases, and the majority of people still working from home or being furloughed, it seemed alarming that there was to be an urgent return to face to face hearings as early as next week.
I received some helpful guidance from Gary Crawley (a family law Barrister at 1GC) who had been invited to the CFC and talked through and shown some of the safety measures put in place ahead of the return to face to face hearings. Whilst I completely agree that the CFC has clearly tried to think of as many safety issues as possible in regard to keeping the advocates and parties safe when attending court, I could not help feel concerned that some of us would feel under significant pressure to return to the court room to undertake advocacy when the UK otherwise is remaining subject to lockdown measures and many of us are receiving news of covid19 deaths and are understandably concerned that there is still a very real risk to our health and safety.
There is clearly a need to balance between public health concerns and the need to maintain access to justice and the question of whether we leave our homes is a very personal and individual choice to be made. However, there will be some advocates that faced with a face to face listing will have less choice than others to attend that hearing (ie. Low income/ sole income families). There is also advice that remains out there, from Sadiq Khan – Mayor for London – (who reaffirmed his position yesterday evening) that the public should avoid using TFL transport as he remains concerned about the impact of a surge in people resuming to daily use of the transport system in London (for example).
I suspect there will be hybrid hearings taking place in the very near future and without doubt there will be some family court hearings that have been adjourned multiple times that are just not suitable to be held remotely, that should now be listed as a face to face hearing. But at what cost to the health of the advocates and parties that attend any face to face listing?
Whilst this has been brought to my attention due to one of my own matters being listed for a face to face hearing in London on Monday 1 June, I am concerned as to how things will now progress in the rest of England. Having many staff all over the country, and having sought the views as to whether they would feel safe returning to court, the resounding response I have received is that they would not feel safe at all, at this stage. There is a consensus that they could be exposed to covid19 not only in travelling to and from court and in attending court itself but that angry respondents, in close proximity, may not observe social distancing and assaults by spitting may also occur. The feeling is that there will simply not be the correct protection in place to ensure the safety and wellbeing of advocates in such a swift return to court.
For us, dealing with such a vulnerable client base, it is already difficult advising them as to how each court deals with remote hearings differently and one can not help be concerned by the likelihood that national courts will similarly have their own approach to safeguarding for face to face hearings, meaning that providing advise to clients will be difficult and possibly uncertain into how their safety can be protected. There is the added complication that some clients may still have children at home and have no familial support for childcare and therefore would not be able to attend court; as well as the category of people still shielding or isolating due to household circumstances.
I will end this opinion piece with a query as to how understanding and flexible the court will be to requests from advocates to participate in a hearing remotely, even if other parties chose to attend face to face listings. As advocates, we often conduct all hearings from start to the end of the case and to find yourself in a position of having to either (1) attend a face to face hearing when you would really rather not or (2) be told that you are unable to do the advocacy and must find alternative representation. That has cost implications as well as client care issues (in circumstances where the client specifically wants you as their advocate).
We will continue to do all we can at NLS to keep the wheels of justice moving and to help all our clients be navigated through extenuating circumstances, whilst also ensuring that our advocates and clients have a voice as to whether it is safe/ appropriate to attend a face to face listing.