What is the impact of Covid-19 on court hearings in the family court?
The courts, and those working within the court system, are having to adapt to the changes of the current circumstances. The vast majority of cases in the Family Court generally take place by way of face to face hearings in the court building
However, in the current circumstances, the starting point now in relation to financial remedy cases is that (whilst the Judge will retain a discretion) they should take place remotely and the indication at this time is that video hearings are preferable to telephone hearings.
One of the difficulties at the moment is that different courts across the country appear to be adopting slightly different procedures.
For example, I am aware that some courts are placing the onus on the parties to submit a consent order requesting that a hearing to take place remotely and for this to be considered by a Judge. In other courts, Judges are undertaking hearings by telephone without a consent order requesting that the hearing take place remotely being submitted, having been provided with the relevant telephone numbers by the Applicant (or their lawyer if represented).
Is my hearing likely to go ahead?
The Family Court is under increased pressure and its resources are limited to deal with the impact of the current Covid-19 crisis.
As a result, they are having to prioritise certain cases and financial remedy proceedings are falling within the lowest priority. Added to this, the courts are unable to list as many remote hearings as they would hearings that take place in the court building itself.
Therefore, whilst undoubtedly the court will seek to accommodate as many hearings as it can, my suspicion is that a substantial number of financial hearings are likely to be adjourned and relisted to take place at a later date.
From speaking with other professionals working in the Brighton area, locally at least, it would appear that the majority of Financial Dispute Resolution hearings (FDR) in recent weeks have been adjourned.
What can I do?
The first stage is to consider where your financial remedy case is in the proceedings.
A First Appointment is typically used for the court to set out what information it needs so that the next hearing (the Financial Dispute Resolution Appointment) can take place with the maximum benefit for both parties.
If your case has been listed for a First Appointment and that hearing has been adjourned or you are concerned that it may be adjourned then it is often possible to agree the Directions that the court should make, setting out what needs to happen next e.g. replying to questionnaires, obtaining valuations of assets etc. Where this is possible you can ask the Judge to approve these on paper
Alternatively, if you are unable to reach an agreement, the issues that are in dispute can be identified and the Judge asked to determine those issues on paper without the need for a hearing to take place.
Financial Dispute Resolution Appointment (FDRA)
The purpose of an FDRA is for the court to encourage the parties to reach agreement through negotiation with the Judge giving a view (on a without prejudice basis) as to the likely outcome.
Therefore, in my view, it is quite proper to consider whether in the current circumstances, you will be in a position to have effective negotiations. The current uncertainty caused by the Covid-19 crisis with regard to income, mortgage capacities, property values and potential impact on pension values, to name just a few, may mean that you feel that it is unlikely that effective negotiations can take place at this time.
For this reason, whilst matters cannot be allowed to drift indefinitely, there is a risk that choosing to push on regardless could mean that either:
- Effective negotiations simply cannot take place and so an opportunity is wasted.
- Agreements are reached which ultimately prove themselves to be unfair and, because an agreement is reached at a time when it is known that there is uncertainty, there is no recourse open to the person who has suffered.
This being said, there is likely to be a natural concern from the court that the current circumstances may be used by one party to intentionally delay matters unnecessarily.
There will be those cases where an effective FDRA can take place and, if your hearing has been adjourned or you are concerned that it may be adjourned at short notice and do not want to delay matters or incur wasted costs, then there is the possibility of having a private FDRA.
This takes place by instructing an independent barrister or solicitor to effectively take the place of the court appointed Judge for the purposes of conducting the FDRA. These private ‘hearings’ can often be arranged quickly and take place through video technology and are ideally suited to taking the place of a court FDRA in these circumstances.
The comments that I have made about whether or not the case is in a position for an FDRA to take place also apply in respect of a Final Hearing.
However, in the event that a Final Hearing is adjourned or you are concerned that it may be adjourned and you feel that the case is ready to proceed with a Final Hearing, then there is the option of Arbitration.
As with a private FDRA, this can normally be organised quickly and can take place through video technology.
If you are involved in financial remedy proceedings and require guidance please contact us. We are able to offer appointments by telephone or video.