Coronavirus Family Law Update
The Coronavirus pandemic has resulted in wide ranging changes to the way people live their lives and the way our society is operating. The challenges of dealing with these changes is immense, with many people furloughed or working from home and many people laid off or losing their jobs or livelihoods. This has undoubtedly caused a great strain on peoples lives.
Whilst many lawyers have continued to work and struggle to maintain the service that clients have expected, the practicalities of working from home, taking instructions and dealing with the courts and other parties have been challenging. We have all had to embrace unfamiliar technologies in order to keep the justice system working. Many rules have had to be changed, and here are a few important developments:
REMOTE HEARINGS
The President of the Family Division has produced guidance on the conduct of hearings during the coronavirus lockdown. Where practicable, all hearings are being conducted by telephone or video calling. In most cases, this arranged by the court, with the assistance of the parties’ solicitors where lawyers are instructed. This has included some trial or final hearings. In some case, hearings have had to be adjourned, and there also some cases, such as public law and private law children cases involving allegations of serious harm to a child, where the court has decided that a face-to-face hearing is necessary, which has led to some instances of decisions made at remote hearings being set aside. Careful consideration needs to be given in each case as to whether it is more appropriate to adjourn a case until a face-to-face hearing can be listed than to press on with a video or telephone hearing.
On the whole, video and telephone hearings and the use of technology has been hailed a success, although with varied internet access and availability of equipment and technology, this has not been without its problems. However, it is likely that we could see an increase in the use of these sorts of hearings even after we come out of the lockdown.
CHILD ARRANGEMENTS
There has been clear guidance from the President of the Family Division concerning the continuation of existing child arrangements during the coronavirus pandemic. The clear message from the government and the courts is that children under 18 can, and should, continue to move between their separated parents’ households where it is practicable and safe to do so. Clearly, where someone in either household is isolating due to having symptoms of coronavirus, or there is a vulnerable person who is shielding, it may not be possible to continue the arrangements, either until the lockdown is over, or until the person concerned, and other members of the household, including the children, are no longer required to isolate. If that is the case, then other alternatives such as skype, or video calls should be used in the meantime, until the previous arrangements can be returned to.
Details of the guidance can be found here:
Coronavirus Crisis: Guidance on Compliance with Family Court Child Arrangement Orders
There have been some instances where parents, particularly in high conflict cases, are using the coronavirus pandemic to limit the time the children spend with the other parent. The courts have quite clearly stated that this will not be tolerated. However, it is important that these sort of problems are dealt with swiftly and, if necessary, brought before the courts asa matter of urgency. We can offer initial free and confidential advice on child arrangements issues by telephoning 01539 723757 or emailing ahill@templeheelis.co.uk
Modifications to the Family Procedure Rules 2010 were introduced due to the coronavirus pandemic and will be in force from 23 April 2020 to 30 October 2020. The aim of the modifications is to enable applications for Child Arrangements Order (eg contact and residence orders) to continue to be made varied or discharged. The main effect is to allow local courts to develop their own practices in managing the application. So, if you are making an application to the court for a child arrangements order, it is worth speaking to the court staff to check what procedures have been put in place, eg for filing of application and listing of hearings. The provisions are contained in a new Practice Direction 36Q which amends the PD 12B (Child Arrangements Programme).
STATEMENTS OF TRUTH
PD 17A has been amended so that as from 23 April 2020, statements of truth can be ‘signed’ with an electronic signature, where a standard form or online application process allows for it to be done that way.
ON-LINE DIVORCE PROCEDURE
From 6 April 2020, a new PD 41A came into force governing the issue of certain matrimonial proceedings through electronic means. This includes undefended divorce proceedings. This allows for the issuing of a divorce petition, making of an application for costs, serving and acceptance of service of documents other than the divorce petition, amendments to the application, fling of the acknowledgement and applying for the decree nisi and decree absolute. The court can determine that certain proceedings are not suitable for the on-line procedure. If the petition is defended, it will not proceed by electronic means.
Until 6 April 2020, only the general public had access to issue and manage divorce proceeding via the on-line portal. Many people have used this since it was introduced with varying degrees of success and experience. However, this is now open to members of the legal profession, which will enable cases where there is a level of dispute and financial claims which need to be resolved before decree absolute is applied for to be managed more effectively.
COMMUNICATIONS WITH THE COURT
New rules concerning the communication by parties with the court were introduced from 6 April 2020. In essence this makes it a requirement that any communication with the court be disclosed to the other parties or their legal representatives unless there is a compelling reason not to do so. The rule applies to all, including unrepresented parties. Any letter, email or similar communication to the court on a matter of substance or procedure, must be copied to the other party, parties or their representative.it does not apply to communications of a routine, uncontentious or administrative nature.
If you feel there is a compelling reason not to send the communication to the other side, this must be clearly stated in the communication when sent to the court. There is also no requirement to send copies of the communication where the court rules state that the requirement does not apply.
There are other procedural changes introduced from 6 April 2020 and these are all contained in SI 2020/135 which can be viewed by searching for it on-line through your internet search engine, as can the full wording of the Family Procedure Rules 2010 and related Practice Directions.
SUPPORT FOR VICTIMS OF DOMESTIC VIOLENCE
There has been a lot of reports in the press about the rise of domestic abuse reports during the coronavirus epidemic and, no doubt, many people are struggling. Guidance produced by the Ministry of Justice to victims of domestic abuse of all types can be found here:
Coronavirus (COVID-19): support for victims of sexual violence and abuse
At Temple Heelis, although we cannot offer legal aid, which many victims of domestic abuse will be entitled to, we can provide initial free and confidential telephone advice to persons who are concerned about their situation, or who have been advised that they do not qualify for legal aid and are looking to sort out a divorce, separation and related financial and private child arrangements. If you want to take advantage of this, please call Andrew Hill on 01539 723757, or email ahill@templeheelis.co.uk
FINANCIAL ORDERS AND AGREEMENTS
Some people may have come to agreements or been negotiating settlements before the coronavirus pandemic broke. Many will have found their financial circumstances will have changed. In some cases, there will need to be a review of any proposals or agreements and, if necessary, requests or applications made to review or update valuations of properties, pensions and parties’ financial circumstances. If so, this should be done as soon as possible. It is not advisable to go ahead with a financial settlement without taking legal advice first. Also, any changes to arrangements, particularly an existing court order, should be varied in writing and, where applicable, approved by the court to make it legally binding on both parties. Where there is no agreement any application to the court to amend the terms of an existing agreement be made promptly.
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