Coronavirus: McFarlane signals 'significant change in direction' for family courts

The president of the family division has signalled a 'significant change in direction' in how the family courts will work as he became the latest senior judge to issue coronavirus-related guidance. The advice follows the lord chief justice's statement that remote hearings should become the default in civil and family justice. 

Sir Andrew McFarlane said the aim of his Covid-19 guidance is to ‘keep business going safely’.

While all family court hearings should be conducted remotely via email, phone, video or Skype, he said a court-based hearing should take place ‘where the requirements of fairness and justice’ require it, and it is safe to do so.

Case-specific factors will determine whether a remote hearing takes place. Suitable categories include all directions and case management hearings, emergency protection orders, interim care orders, and injunction applications where there is limited evidence to be heard.

‘Where a case cannot be listed for a remote hearing as matters stand then any existing listing should be adjourned and the case must be listed promptly for a directions hearing, which should be conducted remotely,’ 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. In other cases it may be necessary for the personal attendance at court, for some or all of the hearing, by some or all of the participants.

‘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.’

If a case is urgent and cannot be conducted remotely, ‘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’.

On technical matters, the guidance states that remote hearing arrangements must make provision for the hearing to be recorded. If BT Conferencing is used for a telephone hearing, the system will produce a transcript. Skype for Business enables the hearing to be digitally recorded.

Judges and magistrates must ‘use their best endeavours’ to ensure only those who would be allowed into a courtroom for an oral hearing are privy to the remote hearing.

McFarlane said: ‘These are exceptional and unprecedented times. The situation both national and within each locality is changing daily, if not hourly. I am well aware of the intensely difficult and highly stressful circumstances that all those working in the family justice system are currently experiencing and I am greatly appreciative of their commitment to the continued delivery of justice in circumstances which, only a week or so ago, would have been considered unimaginable.

‘This guidance is intended to deliver a very significant change of direction in the method of working within the family court, whilst at the same time enabling us to continue to operate and to meet the pressing needs of those who turn to the court for protection and justice.’

*The Law Society is keeping the coronavirus situation under review and monitoring the advice it receives from the Foreign & Commonwealth Office and Public Health England.

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