Coronavirus – remote hearings in the Family Court
LAST UPDATED 05.05.2020
Despite the coronavirus pandemic, the Family Court is still open. The court has changed the way it hears cases so that any urgent hearings can continue. They are now hearing cases remotely, this means via telephone or video conferencing. If you need protection from the court, they will be able to hear your case.
The court is still hearing emergency applications for non-molestation and occupation orders.
If you need emergency protection, you can contact FLOWS to get legal help making an application for an injunction. The court can hear your application in an emergency and grant the order based on your application or following a telephone hearing.
Having support to help deal with the court process is important. It might be difficult to get face to face support at the moment but domestic abuse support services are working hard to make sure they can still offer support.
Many support services will have experience of supporting women in the family court. If you have a support worker, speak to them about the hearing. Ask to have a conversation with them before and after the hearing. They might already know what the family courts in your area are doing and be able to help you speak to the court. Contact the National Domestic Abuse Helpline on 0808 2000 247 to find out what support you can get.
In this guide we cover:
The most recent guidance from the judiciary can be found here (opens pdf). If you are worried about any changes, the court service (HMCTS) is publishing daily updates on how the court is responding to the current crisis which you can find here. The judiciary are also publishing any updates or new guidance here.
If you need to send an application to the court to start a case or because you want to make an application in an ongoing case, courts are now accepting applications by email. You need to check which court is open as some have closed completely. If your court has closed, you can send your application to a court that is open. Read the guidance for form C100 here. Find out which courts are still open here. The court service is working with a limited number of staff so it may take longer than usual to get through to someone if you telephone.
A remote hearing is a hearing that takes place using technology so that no one needs to leave their home. In accordance with current Government guidance on social distancing, all parties should be able to stay at home and the hearing will take place over the telephone or using an electronic communications platform. The guidance does not recommend any one method to use and refers to several platforms to choose from, which include a telephone conference call, BT MeetMe, Skype for Business, or their own Cloud Video Platform (CVP).
These platforms all work slightly differently but, in general, whoever is organising the hearing will send you an email with the information you need to access the hearing. You should open the link on your computer, tablet or phone and get used to the platform before the hearing. The court has produced guidance about telephone and video hearings here.
The guidance states that nearly all categories of family law hearing are suitable for remote hearing including emergency hearings, all directions and case management hearings, private law children hearings and financial cases.
In practice, a large number of hearings in contact cases and financial cases have been adjourned (this means delayed).
The court has had to delay a lot of hearings. The court is prioritising certain types of cases which includes injunctions and urgent children hearings. Read the priorities here.
Hearings that do go ahead will now take place remotely unless this is not possible. If you have a lawyer, keep in contact with them to discuss the arrangements for your hearing. Ask them how you will speak to them during the hearing without other parties or the court hearing you.
If you are representing yourself, it is important to keep an eye on your post and email for updates from the court. The court is trying to contact everyone with upcoming hearings to help work out the easiest way for the hearing to take place. Many hearings are being adjourned (this means delayed) and the court will let you know if this has happened to your hearing.
Court staff are getting to grips with these changes at the same time as everyone else. Some courts have closed and others have changed the hours they answer the phone. Try not to telephone the court unless it is necessary, for example, your hearing is in a few days and you still haven’t heard from them. If the other party has a solicitor, they should contact you with details about how the hearing will take place. If you are concerned, you can contact them and ask if they know what is happening.
Urgent applications for injunctions or urgent orders in relation to children should be prioritised by the court. The court is used to dealing with emergency telephone hearings in the High Court. A similar procedure is likely to now be used in the rest of the Family Court.
The court has published guidance on the types of cases they will prioritise here. Applications for injunctions to protect victims of domestic abuse are still taking place and it is possible for the court to hear them urgently.
If you are going to struggle with a remote hearing, you need to tell the court as soon as possible. Some of the problems you may face are:
- you may not have a good enough signal or do not have internet access
- you are at home with the children and do not have a private space to take part in the hearing
- you do not feel confident using technology and will struggle to switch between the hearing and documents on the computer
You can ask the court to adjourn the hearing. This means it will be delayed until it is possible to have a hearing in the court building.
If your hearing really needs to go ahead and you are not able to attend remotely, some hearings are still taking place in court buildings with appropriate social distancing measures in place.
Write to the court explaining why you think a remote hearing would harm your access to justice. The court may decide to adjourn the hearing based on what you have written or, the court will list the case for a short hearing called a preliminary hearing which could take place over the telephone or by email. See below for more information about the preliminary hearing.
Some hearings will have to be delayed for quite a while. It will be the judge’s decision but they will need to consider whether justice can be achieved with the hearing taking place remotely.
Some courts are trying out the remote hearing in advance to see if it works. If your court suggests this, try it out to see how it works and make sure you tell the judge of any problems you experienced.
If it is a case management hearing – this means a short hearing where the purpose is to work out what evidence the court will need and whether it needs to make any directions for assessments or reports – these hearings will be able to go ahead in most situations. Longer hearings, where the court is expected to hear evidence will be a lot harder to manage if you are representing yourself.
The judge will decide whether the hearing can go ahead or whether it should be adjourned.
If the court arranges a remote hearing and you do not join the hearing, the judge may make decisions about your case without you.
If you are representing yourself in court, it is important that you prepare carefully for each hearing. The fact that the hearing is remote is no different. You need to think about the most important issues you want the court to know about before the hearing and make sure you raise each one.
You should also write down your points in a position statement and send this to the court and the other parties at least 24 hours before the hearing. You can read our guides on family court proceedings including how to write a position statement here.
You should identify a quiet space in your home where you will not be disturbed or overheard by anyone, where you can sit for the actual hearing.
If the court is deciding whether a remote hearing should take place, they may contact you to arrange a preliminary hearing to discuss this and the different options available for a remote hearing to take place.
It may be that the decision about whether to have a remote hearing will be made by the judge without a preliminary hearing and you will be told by email what the judge has decided. If you are asked by the court what your views are about a remote hearing you must make sure you set them out clearly in writing to the court.
If there is a preliminary hearing, the judge will discuss which electronic communication platform could be used and which party will be responsible for making the arrangements for the remote hearing (called the lead party). If you do not have a lawyer, this will not be you. It is likely that this initial hearing will take place over the telephone.
The court will want to use technology that allows video conference if this is possible. This means you will be able to see the judge and other parties who are speaking. There are different platforms available. You can learn about the different platforms by searching for them online.
Responsibility for making the arrangements for the remote hearing will depend on whether any of the parties have legal representation. If you are the applicant and you are represented, it will be your solicitor’s responsibility. If you are not represented but the other party is, then their solicitor may be asked to make the arrangements. If no party is legally represented, the court will make the necessary arrangements.
You should tell the court if you require an interpreter as soon possible. As it is no longer possible for an interpreter to sit next to you, it may not be possible for the hearing to go ahead if you or the other party requires an interpreter. The court is trying to resolve this problem.
An intermediary is a third party who is appointed to support vulnerable witnesses or parties to participate in or understand proceedings inside the courtroom. The problems with communication between the intermediary and the person they are supporting are the same as for interpreters. At the moment, assessment for intermediaries are not going ahead because it is not safe and only experienced intermediaries are continuing to support parties at court.
This means that if you or another party in the case needs an intermediary, the hearing may have to be adjourned while these problems are dealt with.
The lead party/Court will confirm how the hearing will be held with the other parties and the court at least 24 hours before. For example, if the hearing is to be held using Skype For Business, all parties will need to be given instructions on how to join the call, including the meeting ID and password. You will be emailed these details.
No later than the day before the remote hearing, the lead party must prepare a PDF bundle of documents and send this to the court and you. Learn more about what a bundle is from our guide here. Where all the parties are unrepresented, none of them are obliged to prepare a bundle, unless the court tells you to.
The guidance states that the bundle must contain at least:
- A case summary and chronology;
- The parties’ positions statements;
- The previous orders that are relevant to the remote hearing;
- All essential documents that the court needs to decide the questions at that particular hearing (this may not be all of the evidence in the case);
- A draft order;
- Completed advocates’ forms together with the single address that the signed and sealed forms are to be returned to for distribution to the advocates.
and must meet the following requirements:
- PDF format must be used;
- All documents are to be contained, if possible, within one single PDF file;
- The PDF file must be searchable;
- Pagination must be computer generated within the PDF, not hand-written: (i) Original pagination must be by section and page number i.e. A1, A2, A3…. B1, B2, B3 etc; (ii) Insertions, after compilation of the original bundles, should use ‘legal’ numbering (e.g. B1.1, B1.2, B1.3 to be inserted between B1 and B2);
- Each section of the bundle, and each individual document referenced in the index, should be separately bookmarked;
- Electronic bundles should contain only documents and authorities that are essential to the remote hearing.
If you are not represented and the other party is represented, the other party’s lawyer will create a bundle. You should contact them to find out how they will give you a copy. They may do this by email or, if necessary, can post a copy to you. If you need a copy posted to you, make sure you tell them this well before the hearing to give them time to do this. There may be some short documents that are prepared only the day before the hearing which will have to be emailed to you.
If neither you nor the other party is represented, you can ask the court about the bundle. The guidance suggests the following steps may be taken:
- For short hearings, it may not be necessary to have a bundle;
- Some video conferencing platforms allow a ‘screen’ or documents to be shared with one or more of the participants;
- Where no other option is available and the public health guidance permits it, it may be possible for you to attend an ‘open’ court building or other facility in order to participate in the remote hearing while having access to the bundle.
If you are using your computer to attend the hearing, you may find it difficult to swap between an electronic bundle and the platform being used for the hearing. Think about this in advance and work out the easiest way for you to see the documents. You may want to have some of the important documents, like Cafcass reports and witness statements printed out and set out in front of you so you can easily find the document and the page you want to refer to during the hearing.
The court will tell you what time the hearing will start and how long it should last. This means that you must be prepared and ready to start the hearing at the time specified. Be sitting down, ready for the hearing to start at least 10 or 15 minutes before it is due to start. You should use the information you have been sent about accessing the hearing shortly before the hearing is due to start. Or, if the court is contacting you by telephone, be ready for the call.
The court will not start the hearing until everyone has arrived.
The judge and parties will join the meeting at the time given by the court. How you dial in depends on the platform being used. You should be sent details on how to join your hearing by the lead party or the court before the hearing. The court has produced guidance on how to join hearings by phone or video call, which can be found here.
Once everyone has joined, the judge should remind everyone of the rules during the hearing and will ask people to speak in turn. The applicant goes first. If you do not agree with something the other party is saying, the judge should give you an opportunity to speak. You do not need to interrupt instead, make a note of it so that you can raise it when you have your turn to speak.
When it is your turn to speak, focus on the main points you want to make first. Use the position statement you prepared to remind yourself of the things you wanted to tell the judge. Try not to be distracted by what the other side has said and forget to make your points. Then, after you have made your main points, if there is anything the other side has said that you do not agree with, you can explain why. You can direct the judge to different documents the court has if they are relevant.
Remote hearings still need to be held confidentially. You will need to make sure you are able to attend the hearing on the phone or video in a place that is private and cannot be overheard by anyone. The Judge will do their best to make sure that only those who would be allowed in the court room are involved in the hearing. This is particularly important if you have children in the house with you. You will need to do your best to ensure they cannot hear the court hearing. If this is going to be an issue for you, you should tell the court as soon as possible.
Witnesses who are attending the hearing to give evidence only need to attend the hearing while they are giving evidence and not from the start of the hearing. If you have a witness who is going to give evidence, you can ask the judge roughly what time they should be ready so that you can tell them this and they can join the hearing at that time.It is difficult to predict this accurately so tell the witness this and that you will message them when the court is ready. If you live together, the witness should not hear other people giving evidence including you. You will need to make sure they cannot hear you during the hearing before they give evidence.
A witness will be sworn or affirmed by the judge before they start giving their evidence. The guidance states that the witness must be alone, in a private room with the doors closed and must ensure that there will be no interruptions or distractions while they are giving evidence. The witness should have recently re-read all affidavits or statements made by them in the proceedings and have a copy of those documents with them.
The judge will complete the order that is made at the end of the remote hearing (but they may ask one of the legal representatives to type this up and email it to the judge). The wording of the order should be discussed and agreed with the parties before the hearing finishes. If you are concerned about some wording in the order, raise this with the judge before the hearing comes to an end.
All remote hearings will be recorded and transcripts can be requested in the normal way. The court will record the hearing or, if a lawyer for one of the parties is organising the remote hearing, they may record it with the court’s permission and provide the recording to the court after the hearing.
You are not allowed to record the hearing. This is a criminal offence. If you are worried about the other party recording the hearing, raise this with the judge. Judges are now using a script at the start of every hearing so they should already have reminded everyone that it is a criminal offence. If you are particularly worried, tell the judge this.