While my non-lawyer, digitally-savvy husband settled into lockdown ‘remote working’ with such ease, I worried I would struggle. How could I ‘work from home’ without my paper files and the office multi-functioning printer-copier? I reflected and wondered why our profession seemed so far behind the curve.
There has been a great effort behind the scenes, by judges, court staff and by lawyers, to keep the wheels of the family law justice system turning. Family courts were under a huge amount of strain even before Covid-19, with court budgets buckling under the weight of cases. The speed and ability of court staff and practitioners to step up to the challenge of keeping the system going has, in my view, been impressive.
Within weeks, I took part in the first of many ‘remote telephone hearings’. This is where a court hearing takes place with the judge sitting in court, but instead of parties and lawyers sitting in front of them they are on a telephone conference call. The judge chairs the call, the parties listen and their solicitor or barrister argues their case on their behalf. Some of these hearings take place via Zoom. The applications, statements and other evidence are all filed digitally – ‘e-bundles’ have replaced the traditional large lever arch files full of paper.
However, it would be wrong to say that family law has not been affected by the pandemic. Here’s what’s changed.
In general, child arrangements – such as determining how much time you can spend with them, where they should live, or other specific issues – are being dealt with as usual, albeit via remote hearing.
As always, mediation should be considered before an application to court is made. However, if an application is necessary the family courts are still dealing with these applications as normal and within the legislative timeframe.
In my experience, there is an expectation that the legal representatives are pro-active. They should be seeking to agree issues, or identify issues early, and agree court directions before their allocated time with the judge. This means hearings can be dealt with more efficiently.
It should be noted that some more complex matters with longer estimated hearing times and numerous witnesses may need to be delayed if they cannot take place productively by remote hearing. Court listings for final and longer hearings may take some time, so expect delays there. There is no sign of the courts opening their doors to face-to-face hearings anytime soon.
Child maintenance disputes
Child maintenance disputes should still be dealt with through the Child Maintenance Service. They, like almost everyone else, have been affected by Covid-19 and remote working practices. Their current message is that, due to Covid-19, the Child Maintenance Service is not currently contacting paying parents about missing payments. You may have to wait longer to get money that’s owed to you.
The lockdown has had a devastating effect on domestic abuse victims and their ability to seek help. Government guidance has been released for emergency injunctions (which stop abusers harming or threatening victims). It has also made it easier for victims to make applications, acknowledging that victims may not be able to get time and space away from their abuser to fill in an application.
Divorce and financial disputes
Applications are being processed by the courts as normal, although expect some delay in the courts setting dates for hearings because of the backlog of hearings already in the system.
Clients who are part way through a case dealing with finances and face delay with hearing dates may wish to consider arranging a privately held Financial Dispute Resolution Hearing (FDR).
An FDR is the second of three court hearings in family finances case where the parties try to reach an agreement following an indication from a Judge as to what they consider a fair outcome to be. Most cases settle at this stage and only a minority proceed to the third and final hearing. Private FDRs have been around for a few years but have become much more popular in recent months. They follow the same procedure as an FDR conducted by a court but can be arranged at the parties’ convenience and by video conferencing if it must be held remotely. The Judge will usually be a barrister who specialises in family matters. Costs in a private FDR will be greater than a court-conducted FDR because the parties will need to share the cost of the judge. However, when you consider that it is much more flexible, quicker, and the judge will not be having to deal with a number of other cases on the day (as a family judge would usually need to do) they are worth considering.
Adapting to the ‘new normal’
The pandemic has shut down many of our normal procedures, but in many instances we have adapted quickly, and in doing so found efficiencies that could benefit both clients and businesses. If you woud like to discuss how any of the above could affect you, I’d be happy to arrange a virtual meeting.