The guidance from the President of the Family Division is that steps must be taken to “keep business going safely” during the coronavirus pandemic. Over the past few weeks many family law hearings have taken place by telephone and a variety of other platforms in an attempt to keep judges, court staff and the parties. It is clearly in the public interest to keep the family justice system functioning.
The general rule is that, for the time being, all family court hearings should be undertaken by telephone or video call i.e. physical hearings should be replaced by remote hearings wherever possible.
In the case of P (A Child: Remote Hearing) Sir Andrew McFarlane stated that just because a hearing can be conducted remotely, does not mean that it ought to be. In that case the court was asked to consider the position of a young girl who had suffered significant harm. A 15 day hearing has been listed to determine a final care plan for the child.
Sir McFarlane said that as the case contained allegations of a fictitious illness it was important for the judge to have the parties in the room so that the evidence could be properly considered. The judge felt it was important to hear oral evidence from the parties and consider their reactions to the evidence of others. He felt that, in this case, the only way to ensure that a decision is justly made, in the best interests of the child, would be for the parties to attend court in person.
Consequently, during this period of lockdown we will continue to see some cases listed at court for a remote hearing. However, the appropriateness of this will be dependent upon the facts of each case.
Certain family proceedings should not be conducted remotely