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The Road Ahead – Family hearings beyond the pandemic

Posted on 14 September 2020

In the months since the nationwide "lockdown" was imposed on 23 March, the practice of litigation has changed in ways that few could have imagined, even at the start of 2020. Video hearings and paperless bundles, previously considered unlikely to be widespread for several years, became the norm within a matter of days. Practitioners were inundated with guidance in the early days of lockdown. As time went on, helpful decisions from the High Court and Court of Appeal clarified some of the principles and factors to be borne in mind when considering whether a hearing is suitable for a remote hearing.

On 9 June, Sir Andrew McFarlane, President of the Family Division, published "The Road Ahead", a framework to identify priorities and ground rules. Within the framework, he notes that any early "rose tinted" notions that this would all be over by July have evaporated and that it is now clear that stringent social distancing measures will be in place for many months to come. There remains a very high volume of work in the Family Court system which was not coping with the pre-COVID workload. Although there is a gradual return to "in-person" hearings, social distancing measures mean that the courts can deal with far fewer of these than before and remote hearings will continue to be the default for many months to come.

With this in mind, he sets out a more robust approach to determining whether cases should be heard remotely. Whereas adjourning contested matters had previously often seemed appropriate when it was assumed the adjournment would be a matter of weeks, now that it is evident that a fully in-person hearing may not be possible for months, the resultant delay will often be such that, particularly where the welfare of children is at stake, the justice of the case demands that the case be heard by way of a remote or hybrid hearing (where one or more of the parties attends court in person).

The President also notes that robust case management will be required, and that there will need to be a "very radical" reduction in the amount of time that the court affords to each hearing. Parties are likely to find that the evidence they are permitted to give and the submissions that can be made will be limited to that considered "necessary" for the court to hear. The significant issue here is: who decides what is "necessary"? Sometimes key issues don't become fully apparent until the evidence has been given. Where a remote hearing is to proceed, the court should consider what options are available to support lay parties and enhance their ability to participate, for example by attending at a venue away from the party's home, or arranging one of their legal team to accompany them (whilst social distancing).

Sandra Davis says: "There is an increasing push towards ADR and/or arbitration in family cases. These options may start to look more attractive if remote hearings remain a significant part of the legal landscape in the medium to long-term future. Generally, one of the complaints people tend to have about the court system is that it takes too long for cases to be resolved and that the individuals' views get lost. Children are not heard. Views become polarised due to delay. This has been exacerbated by COVID-19. Where there is a lack of time for full argument, or for positions to be properly ventilated, parties can be left feeling disenchanted and distressed by the way that cases are dealt with – both legally and on a human level. If the future will feature less time being given to cases, it may feel like a shallower form of justice. Parties would be wise to consider other options."

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