Case Law and Legal Summaries - COVID-19 special edition

Published: 31/03/2020

This update summarises some key points for social workers working in the family court, along with some links to key sites which are being regularly updated as the coronavirus (COVID-19) situation develops.

Introduction

Included in this month's special edition:

Family Courts in the coronavirus (COVID-19) outbreak

'The reality is that for the foreseeable future remote hearings will become the norm and they must become the norm immediately.'

Mr Justice MacDonald The Remote Access Family Court (Version 3) 3 April 2020.

This update summarises some key points for social workers working in the family court, along with some links to key sites which are being regularly updated as the situation develops.

Some law and policies have been amended. The Coronavirus Act 2020 was passed on 25 March 2020. Under this Act, social workers who have been previously registered are able to register to practice on an emergency basis. Temporary amendments to existing laws have been made, which include the Mental Health Act 1983 (2007) reducing the number of doctors required to detain a person under section and extending time period in which a person can be detained.

Digital family courts

National guidance from the President of the Family Division (19 March 2020) states that whilst the default position is that all family hearings should be held remotely, where requirements of fairness and justice require a court based hearing and it is safe to do so, this will go ahead. The guidance sets out technical details and the categories of hearing suitable for remote hearing. This guidance was supplemented on 24 March 2020, stating that live court-based hearings should be confined to only exceptional circumstances where a remote hearing is not possible and is sufficiently urgent. Any live hearings will need to be approved by the judge hearing the matter.

  • Safety provisions in place include; the implementation of social distancing; a member of court staff inviting you to enter the building (you should not enter until invited); bag searches being completed in a 'hands off' manner when entering the court; and changes to the security policy now allows hand sanitiser to be brought into court buildings (security officers will ask you to use it to prove it’s not harmful).
  • Her Majesty’s Court and Tribunal Service (HMCTS) is providing an operational summary, updated at 9am daily during the coronavirus (COVID-19) outbreak which includes advice about attending a court hearing in person or virtually
  • The Nuffield Family Justice Observatory are producing a weekly bulletin and regular updates on the family justice system and the impact of coronavirus. 

Promoting contact

Nuffield Family Justice Observatory (FJO) have addressed seven questions in using digital technology to help maintain contact with birth parents and siblings for children in care. Advice includes using a conference calling service so that participants’ phone numbers are not shared and ensuring platforms are age appropriate as many (including Skype) have a minimum age of 13 and WhatsApp is over 16 years old. The full guidance can be found here

CAFCASS have provided helpful advice for children and families, including effective co-parenting and child arrangements.: 

The Remote Access Family Court

The Courts and Tribunals Judiciary have published guidance for remote hearings. Dated April 2020 (version 3). This will be subject to regular updates due to the rapidly changing situation.

A summary of some key points for workers accessing the family court.

Preparation for court

  1. Consideration of whether a remote hearing is appropriate should begin immediately.
  • Is it possible to reach an agreement and/or narrow the issues that need to be dealt with by the court?
  • Has an effective advocates meeting taken place?
  • Are the advocates in receipt of client’s up to date instructions?
  • Has the relevant evidence or other documentation been filed, as expected?
  • Are any of the parties deemed vulnerable due to their age and/or an underlying health condition?
  1. Where one or more of the parties is represented, responsibility for making the arrangements for the remote hearing will fall on either the applicant or the first represented party. For public law care proceedings, this is likely to be the local authority.
  2. The court’s permission is required for a hearing to be dealt with remotely. Some cases will need to be adjourned for a long period of time because a remote access hearing is not possible.
  3. A non-exhaustive list of communication platforms for remote hearings includes Skype for Business; Microsoft Team; Zoom and telephone conferencing. There is no prescribed method by which a remote hearing is to be conducted or the communication platform to be conducted.
  4. There must be an initial hearing to consider a variety of preliminary issues including agreeing the communication platform to be used and the identity of the lead party. It may be necessary for this initial hearing to take place by telephone.
  5. The lead party must prepare and send to the court an electronic bundle, prepared with care by somebody with adequate knowledge of the case. On 23 March 2020 approval was given to use e-bundles in all remote hearings.
  • The electronic bundle must be in PDF format.
  • Be in one single PDF file
  • The PDF file must be searchable, and computer paginated
  • Each section of the PDF bundle should be bookmarked
  • Only essential documents for the remote hearing should be included.
  1. Ideally an electronic copy of the bundle should be made available to the witness by the lead party. In relation to the oath, the court is likely to ask the witness to repeat the oath at the prompting of the judge. There is no expectation that the witness should touch the relevant Holy Book. When a witness gives evidence remotely, they should be alone, in a secure room with the doors closed.
  2. The lead party must liaise with the court to resolve technical issues and provide details to all the parties required to attend the remote hearing – no later than 24 hours before the hearing. The lead party may need to ‘invite’ the judge to the communication platform. It is acknowledged that there are security vulnerabilities through the variety of communication platforms available, but the guidance adds that there is also a need to keep the family justice system operational.
  3. All hearings will be listed at a specified time and advocates and parties must be ready at this time. Time estimates are critical and must be met. The wording of the Order should be discussed and agreed with the parties before the link/call is terminated.
  4. Responsibility for recording will fall on the party that has organised the remote hearing. The Coronavirus Act 2020 (s.53) modifies previous legislation which made it an offence to record a broadcast from a court.

Attending a remote hearing:

  • Participants should ensure that the background visible on the screen is appropriate for a court hearing and that they are adequately lit in order to allow their face to be seen.
  • Participants must ensure that they will not be interrupted or distracted during the course of the hearing.
  • Participants should not move away from the screen without permission of the judge during the course of a remote hearing.
  • The usual restrictions on eating and drinking in a Court room apply.
  • All reasonable steps must be taken to preserve the confidentiality of the proceedings.  This will include ensuring that participants are indoors in a room with the door closed and alone, unless they are a party to the proceedings sitting with another party to the same proceedings.
  • The use of earphones is permitted and encouraged if their use will assist in preserving the confidentiality of proceedings.
  • The judiciary and other advocates should be addressed as if they were in a physical courtroom. It is not however, necessary to stand when the Judge joins the hearing or when addressing the Judge.
  • All participants to the remote hearing should join the remote hearing prior to the Judge. 
  • Unless addressing the Judge, or otherwise requested to do so, all other participants should have their microphones muted at all times.
  • Unless directed otherwise, all participants should leave their cameras turned on at all times.
  • When a witness is giving evidence, that witness must keep their camera and microphone on at all times. 

The Remote Access Family Court document references several remote hearings which have taken place 

  • Using Skype for Business, Mostyn J conducted a remote final hearing involving five parties and eleven witnesses, including four expert witnesses, and conducted the hearing in the presence of the press, who were able to attend remotely and report it to the public.
  • In Leeds, before Williams J, on 20 March 2020 there was a remote hearing involving the judge and three counsel
  • Sir Mark Hedley used Zoom to complete the remaining eleven days of an urgent fifteen-day fact-finding hearing.

The Transparency Project considers feedback on some potential difficulties in managing remote hearings.

Related resources

This is a fast-moving time for busy practitioners. Here are some links to keep up to date with changes which will effect social work practice.

Professional Standards

PQS:KSS - Support effective decision-making | Shaping and influencing the practice system | The law and the family and youth justice systems | Purposeful and effective social work

PCF - Professionalism | Rights, justice and economic wellbeing | Contexts and organisations