Posted on 23rd April 2020
Family Court Business priorities (via HMCTS) (6 April 2020) (Download Here)
Work that must be done:
Public Law Children:
- Emergency Protection Orders
- Interim Care Order
- Renewal of Interim Care Order
- Secure Accommodation Order
- Deprivation of Liberty authorisation
Private Law Children:
- Urgent Applications
- Child Abduction Orders (including Tipstaff Orders)
- Domestic Abuse (Family Law Act) injunctions
- Female Genital Mutilation and Forced Marriage Protection Orders
- Divorce – urgent applications and decrees absolute
Court of Protection:
- Urgent applications
- Applications under Mental Capacity Act 2005 s16A and s21A
- Serious medical treatment cases
- Deprivation of Liberty
- Form COP1 Statutory Wills – where person is near end of life
- Safeguarding applications via the Office of the Public Guardians
Civil Court Listing Priorities (9 April 2020)
Work that must be done:
- Freezing Orders
- Emphasis on those with a real time element – post termination employment restrictions, noise or interference with property
- Anti Social Behaviour/Harassment injunctions
- Applications to stay enforcement of existing possession orders
- Production of persons in custody following Power of Arrest detentions
- Applications to displace under s29 MHA
- Homelessness applications
- Enforcement work that does not involve bailiffs
- Any applications in cases listed for trial in the next 3 months
- Any applications where there is a substantial hearing listed in the next month
- All multi track hearings parties agree are urgent
- Appeals in all these cases
This page has been compiled by Harriet Lavis and George Coates. The national situation is changing daily if not more frequently. The page will be updated frequently but you are encouraged to ensure you are looking at the most recent guidance. The links below are intended to collate publically available information only and do not constitute formal advice or guidance in any sense.
- Detailed guidance provided by HMCTS – courts and tribunals planning and preparation (7 April 2020)
- HMCTS daily operational summary
- Guidance on telephone and video hearings (27 March 2020)
- List of open, staffed and suspended courts (updated regularly)
3. Family Law specific guidance
- Remote Access Family Court – version 3 (3 April 2020)
- President’s Guidance – National Guidance for the Family Court (19 March 2020)
- Guidance on compliance with Child Arrangement Orders (31 March 2020)
- Guidance for local authorities on children’s social care (3 April 2020)
- Guidance on vulnerable children and young people (1 April 2020)
- Guidance on how to submit an appeal during the pandemic (31 March 2020)
- FRC hearings at the CFC between 6 April – 1 May 2020 (30 March 2020)
(see below FRC)
- FRC hearings in Kent, Surrey and Sussex (24 March 2020)
(see below KSS)
- Financial Remedies Courts E-Bundle Protocol, Mr Justice Mostyn (3 March 2020)
(see below EBundles)
- Accelerated First Appointment Procedure in the FRC
(see below AcceleratedFDAs)
- Sussex DFJ local guidance, HHJ Bedford (6 April 2020)
(see below Sussex)
- CAFCASS Covid Operation (25 March 2020)
(see below CAFCASS)
- New Practice Direction 51ZA – Extension of Time Limits
- New Practice Direction 51Z – Stay possession proceedings and extension of time limits
- New Practice Direction 51Y – Video or Audio Hearings during the coronavirus pandemic (25 March 2020)
- Civil justice protocol regarding remote hearings (26 March 2020)
FRC HEARINGS LISTED AT THE CENTRAL FAMILY COURT BETWEEN 6TH APRIL –1ST MAY 2020
The current national public health emergency requires all financial remedy cases to be heard remotely unless personal attendance is absolutely unavoidable in the interests of fairness and justice. The court must prioritise urgent cases and those involving vulnerable parties.
These Directions apply to all cases listed on or after 6th April up to and including Friday 1ST May 2020
In each case to which these directions apply, there is permission to apply to the court to vary or set aside the directions, as it may apply in that particular case. Any such application shall be made to firstname.lastname@example.org marked for the urgent attention of His Honour Judge O’Dwyer, District Judge Gibbons or District Judge Hudd.
DIRECTIONS IN RESPECT OF URGENT APPLICATIONS
1. Urgent applications include (but are not limited to) Maintenance Pending Suit, Interim Maintenance, Legal Services Payment Orders, applications under s37 MCA 1973 and Enforcement by D50K and D11.
2. In all such cases the parties shall identify within the application or confirm by email, no later than 7 days before the hearing or upon issue of the application if later, that they consider that the case is “urgent” and if so what factors are relied upon in support of the matter being urgent.
3. The court will determine the urgency under the overriding objective applying FPR 2010 r 1.4 taking account the submissions of the parties and the current public health emergency.
4. Where the court is satisfied as to the urgency of a hearing it will list a hearing which may take place on paper, remotely or in person, as the case requires.
5. If the court is satisfied that oral submissions are required the court shall list a remote hearing to take place or shall give directions to enable a hearing already listed to proceed as a remote hearing (see below “Where a remote hearing is necessary”).
DIRECTIONS IN RESPECT OF NON-URGENT HEARINGS:
• FIRST APPOINTMENTS
• FINANCIAL DISPUTE RESOLUTION APPOINTMENTS
• FINAL HEARINGS (INC PRE-TRIAL REVIEWS)
• DIRECTIONS HEARING
• MENTION HEARINGS
6. FIRST APPOINTMENTS: the parties shall, wherever possible, follow the Accelerated First Appointment procedure set out in the fourth schedule to the Financial Remedies Court Good Practice Protocol. Where the parties are unable to agree directions First Appointments shall proceed as listed but as a paper hearing only and no party or legal representative shall attend the
court building. The parties shall submit electronically by the day before the hearing all relevant documents to enable the court to consider giving directions on paper including:
• The parties’ Form Es (without attachments);
• A chronology (agreed or one per party);
• A statement of issues (limited to 2 pages) (agreed or one per party);
• A questionnaire (limited to 4 pages) (one per party);
• A draft order setting out proposed directions (agreed or one per party);
• Short written submissions not exceeding 6 pages in respect of the directions sought including addressing any disputes in respect of any further disclosure sought (if known) and any representations regarding the need for a remote telephone hearing;
The court will consider, on paper, any request for a remote hearing and the parties will be notified of any relisted remote hearing.
7. If your hearing is listed as a PRE-TRIAL REVIEW or a FINAL HEARING the matter will proceed on the day (or first day) of the hearing as a remote directions hearing with a time estimate of 1.5 hours in order to consider (i) the urgency of the case, (ii) the suitability of the case for ADR, (iii) the listing of any future hearings and (iv) the appropriate arrangements for future hearings to proceed remotely. In all cases the parties must investigate whether it is possible and appropriate to resolve outstanding issues by way of arbitration or other alternative dispute resolution procedure.
8. ALL OTHER NON-URGENT HEARING which cannot be accommodated because of lack of court resources may be adjourned and shall be re-listed as a remote mention hearing unless a non-court based dispute resolution has been adopted to determine whether a court hearing is necessary and if necessary to give appropriate directions.
ALTERNATIVE DISPUTE RESOLUTION
9. The parties and the court shall consider at all stages of the proceedings all routes by which the matter may be resolved other than by a further court hearing. Parties should make use of private FDRs, arbitration and ADR wherever possible.
10. Pursuant to FPR 2010 r3.3(1) the court must consider in all proceedings whether non-court based dispute resolution is appropriate and may exercise its powers pursuant to FPR 2010 r3.4(1) to adjourn proceedings:
(i) to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution or
(ii) where the parties agree, to enable non-court dispute resolution to take place.
11. It is the duty of the parties and of the court under Rules 3.3 and 3.4 to consider alternative means of resolving the dispute. The court will need to be satisfied that the parties have properly explored such means. These include but are NOT restricted to:
• Arbitration (Institute of Family Law Arbitrators or Forum of Family Arbitrators);
• Private FDRs where an experienced professional barrister, solicitor or retired judge will assist the parties from a neutral standpoint to reach a settlement;
• Mediation (https://www.gov.uk/government/publications/family-mediation)
12. Where the court is not satisfied that the parties have appropriately explored ADR, the hearing will be adjourned so that this may be explored.
13. The parties shall consider whether the matter is able to be dealt with on written submissions in order to determine any disputed issues and if so:
14. The parties shall lodge written submissions by email and an electronic bundle restricted to immediately relevant documents only by email by no less than 3 clear days before the hearing;
15. The court will consider the written submissions and documents and give a ruling electronically without the attendance of the parties wherever possible.
16. In any case, where the parties have agreed the terms of an order, the draft consent order and any accompanying documents shall be submitted by email.
17. Agreed directions orders, including those made at Pre-Trial Review, must be supported by an agreed Position Statement (or jointly signed letter) setting out the issues in the case and how the draft case management directions provide for such issues to be resolved including the appropriate arrangements proposed by which to conduct any future hearing.
18. Final Consent Orders: a Statement of financial information under Rule 9.26 FPR 2010 (Form D81) must be lodged. It will be acceptable if the financial information required is set out in an appended schedule, provided that the D81 is signed by both parties to confirm that the information provided is accurate and that each party has read the D81 provided by the other party. For litigants in person, Form D81 can be downloaded from www.gov.uk/government/publications
19. Where a signature is required (e.g. undertakings) the court will accept a scanned PDF copy.
WHERE A REMOTE HEARING IS NECESSARY
20. If, after consideration of the above matters, the parties still require a telephone hearing, they may apply under the liberty to apply provision and must satisfy the court that they have taken all reasonable steps to pursue ADR and that the matter is not suitable for a paper hearing.
21. All hearings in this matter to which this Notice applies shall take place by way of telephone hearing pursuant to FPR 2010 r4.1(e) unless the court directs otherwise; accordingly, the parties and their legal representatives shall not attend in person at the CFC on the day of the hearing.
22. No unauthorised person may be present at any hearing. When asked, each party and legal representative must be able to confirm that no unauthorised person is in attendance or able to listen to the hearing;
23. The hearing shall take place via BT Meet Me organised by the court unless the court orders otherwise. The parties must, by no later than 10am on the day before the hearing send to the court at cfc.telephonehearings.gov.uk and email@example.com their contact details, including email address and telephone details to facilitate the hearing.
24. The current methods available for remote hearings supported by HMCTS are
a. Meet Me
b. Skype for Business (by prior arrangement with the agreement of the judge)
Please note that other applications such as Zoom, Lifesize and Teams are not currently approved for remote use by HMCTS. It will be a matter for the allocated judge as to whether any alternative method is approved.
25. Electronic bundles are essential for ALL such hearings to proceed. The bundle must be searchable and electronically paginated. The provisions of FPR 2010 PD27A shall continue to apply.
26. Where the applicant is legally represented the applicant’s solicitor (or where the applicant is unrepresented, the respondent’s solicitor) shall take the lead in providing the court with the parties’ contact details and the lodging of the e-bundle.
27. Where both parties are unrepresented they shall each provide to the court by 10am on the day prior to the hearing their email address and contact telephone number and an electronic bundle containing the relevant documents for the hearing to proceed.
28. All documents must be lodged by email save in exceptional circumstances.
29. Any email sent to the court concerning the case shall contain, in the subject line, the case name, the case number and the date of the hearing.
WHERE PERSONAL ATTENDANCE IS ABSOLUTELY NECESSARY (“IN PERSON HEARINGS”)
30. Where any party considers that the arrangements set out in this notice will not enable the court fairly to conduct a hearing, whether because of security or privacy issues or for other reasons, and where that party therefore considers it to be necessary for some or all of the parties and/or their legal representatives to personally attend at court for the purposes of any hearing they shall set out their reasons either (i) in any application made to the court or (ii) no less than 7 days before the date of any remote hearing listed within the relevant proceedings.
31. Where any request is made for the court to convene an “in person” hearing the court will consider whether the hearing can proceed:
(i) as a remote hearing or
(ii) partly as a remote hearing and partly as an in person hearing or
(iii) whether the interests of fairness and justice require the attendance of all parties and their legal representatives
and, in the event the court considers that any party or their legal representative must attend an in person hearing it shall have regard to the available resources and the safe arrangements required to be put in place in order for any such hearing to proceed.
HEARINGS LISTED ON OR AFTER 4TH MAY 2020
32. Hearings listed on or after Monday 4th May 2020 currently remain listed and shall be heard remotely, subject to appropriate technology being confirmed to be available and resources being identified. However, future listing arrangements must necessarily remain subject to review and may be subject to further Notices and Directions.
33. Where parties consider that it is not currently practicable to proceed with any application that has already been issued and seek to stay or adjourn proceedings they shall jointly notify the court at the earliest opportunity. The court will consider the period of time during which any proposed adjournment or stay is proposed to operate. The court will list the matter for a remote mention hearing on the first available date after 6 months unless otherwise ordered. Any such application should be submitted by email (cfc.fru@Justice.gov.uk) marked for the urgent attention of HHJ O’Dwyer, District Judge Gibbons and District Judge Hudd
34. Where parties consider that any hearing listed on or after 4th May 2020 is not likely to be effective and/or seek to adjourn for the purposes of enquiring into or engaging in ADR or for any other reasons they are encouraged to make any such application promptly (cfc.fru@Justice.gov.uk) marked for the urgent attention of HHJ O’Dwyer, District Judge Gibbons and District Judge Hudd to assist the court in allocating available judicial resources to hear contested cases remotely over the coming weeks.
HHJ Martin O’Dwyer
Lead Judge London Financial Remedies Court 30th March 2020
The FRC in Kent Surrey & Sussex
Emergency Covid 19 Plans
1. We are all adapting to working in different ways and, whilst I have complete admiration for the efforts of everyone (judges, staff, practitioners, parties and others) in the way that they have adapted to the ‘new world’ the reality is that things cannot continue as normal. That is why the changes set out in this document are occurring. The intention is to ‘buy time’ so that we can all become more comfortable in working in our new ways and that, in due course, it will be possible to return to patterns which are more similar to those that existed as recently as 2 weeks ago. These plans are purely for the period between now and Easter (roughly 3 weeks) and will be reconsidered at that stage. They are roughly in line with the procedures that have been adopted in London and other areas.
2. In outline the following will occur:
a) All hearings will be conducted remotely either by telephone or (once available) skype.
b) The present FDA/FDR lists are too large to be conducted by remote methods. It is not realistically possible to conduct more than one such hearing per hour. All FDRs will remain listed but many FDAs will have to be vacated. There may well be a change in time for the cases as they will need a dedicated time slot.
c) All parties are encouraged to use the fast track procedure for FDAs – in particular those for whom the hearings have been vacated.
d) Private FDRs and ADR are encouraged in appropriate cases.
e) Final hearings. These will be vacated but the parties can contact the Court if they believe that it is possible and practicable for them to go ahead.
3. I have attached the draft orders that I intend to be issued. The remaining Court staff are under extreme pressure and it may take some time for this guidance to be put into practice. I urge all practitioners to be proactive in all of their cases in order to attempt to reduce the pressure on the system by taking any appropriate steps that would avoid the need for any hearings at present.
4. The current methods available for remote hearings are
a. Telephone hearings
Please note that other applications such as Zoom, Lifesize and Teams are not currently approved for remote use by HMCTS. In the event further applications or technology become available the parties will be notified.
5. The ability to use skype has only recently occurred (last Thursday) as prior to that date it was not possible to add non MOJ addresses to any call. As a result, it will only be later this week/early next week that skype hearings will be able to be held routinely. It will take some time for the Courts to adapt to these hearings and it seems sensible for the ‘road testing’ to be performed on shorter cases whereby we can resort to telephone if the skype call fails for any reason.
6. In order for remote hearings to be successful it is vital that all documents have been provided in advance for the Court in digital form, including the bundles – for e-bundles please refer to FRC E-Bundles Protocol attached. The parties must also ensure that the position statements, chronology, schedule of assets and statement of issues (as well as open offers in FDRs) are provided at least 24 hours prior to the hearing.
7. Where practicable the working day before a remote hearing, the applicant’s legal representative, copying in the other parties’ legal representative (where both parties are represented) or the respondent’s legal representative (where the applicant is in person) shall email the court and where possible the trial judge to ascertain from them:
(i) whether judge has received the ebundle; and
(ii) whether the remote hearing is to take place by telephone or Skype business and confirm the timeslot the call is to take place at the next day;and
(iii) Ensure that the Court has the phone numbers and or emails required for the hearing to be arranged.
8. The typical list at present comprises of 3 FDRs and 3 FDAs and sometimes more. This is already a huge amount of work for the judge involved. It is simply not possible to deal with any more than one case per hour when using remote hearings as it takes some time for the call to be set up and there has to be some time between hearings for the Judge to read into the next hearing.
9. The FDRs will all remain listed but will have to be re-allocated to 10.00am, 11.00am and 12.00 time slots. There will be one shorter hearing (FDA or similar) listed at 2.00pm to allow time for any of the morning FDRs being able to dial in/email in for further input if required. This will mean that the number of hearings will be restricted to a total of 4 in a day. It is important that parties take a pragmatic approach to any indication provided at an FDR as the delay for final hearing is only going to increase with the present crisis.
10. There will be many FDAs that are vacated There is already provision within the rules for FDAs to be fast tracked by agreement – see Fourth Schedule to the Good Practice Protocol attached. In relation to all of the FDAs that are vacated the parties will be given the opportunity to invoke the procedure and will be given 28 days further to submit to the court the appropriate documents, although strict adherence to the suggested rules is not expected or required in these difficult times. If the parties are unable to comply with the accelerated (paper only) procedure and the directions have not been agreed, the matter will then be listed for a hearing which will either (i) be dealt with on concise written submissions from each party which identify clearly the directions which require adjudication by the judge via email and without any attendance by the parties either in-person or remotely; or(ii) a remote hearing by skype or telephone. It is not yet possible to state when the next date will be listed and this will be considered once the overall situation is clearer.
11. The reality is that the present disruption is going to add to the considerable backlog in listing all FRC cases. There may well be many cases in which it would be beneficial to the parties to utilise a non-Court option. The advantage of this is that the parties can agree their tribunal jointly, it can be dealt with remotely and at a time of their choosing. Even in cases where there has already been a Court FDR it may prove fruitful to have a further private FDR if the final hearing is at risk of being vacated as a result of the current crisis.
12. Any orders that require approving after any private agreement has been reached can be submitted to the Court in the usual way.
13. The need to restrict cases to remote hearings causes the greatest difficulties in final hearings where live evidence is required. These cannot be conducted by telephone and will require a skype hearing. Unfortunately, it is going to take a short while for all of the Courts and judiciary to become familiar and comfortable with this process. As a result, all final hearings which are listed before Easter will be vacated.
14. However, if the parties are both of the opinion that the matter is capable of being heard remotely and they are able to arrange for this to occur then they can make an application (by e-mail) and marked for the attention of HHJ Robinson for Kent cases and HHJ Farquhar for Surrey and Sussex cases. This will be considered and, in conjunction with the trial judge, the matter could be restored to the list if it is felt that the hearing can be conducted fairly and safely.
MR JUSTICE MOSTYN
FINANCIAL REMEDIES COURTS
1. The Financial Remedies Courts Good Practice Protocol of 7 November 2019 states at para 18 that “the FRCs will endeavour to adopt environmentally friendly processes. For example, where possible, parties will be encouraged to conduct hearings on a paperless basis”.
2. FPR PD27A para 2.5 permits the use of e-bundles in a hearing before a High Court judge with that judge’s permission and in other cases or classes of case as have been approved by the Designated Family Judge for the relevant area with the agreement of the President of the Family Division and in accordance with the local arrangements.
3. The necessary approvals and agreements for the use, in principle, of e-bundles in FRC Zones have been obtained and local arrangements are being established.
4. Where an e-bundle is to be used the following technical requirements should be observed:
a. PDF format is to be used;
b. All documents are to be contained, if possible, within one single PDF file;
c. The PDF file must be searchable;
d. 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 be using ‘legal’ numbering (e.g. B13.1, B13.2, B 13.3 to be inserted between B13 and B14);
e. Each section of the bundle, and each individual document referenced in the index, should be separately bookmarked.
5. The e-bundle should be delivered via a cloud-based link (e.g. iCloud, OneDrive, Dropbox or Google Drive) rather than in a series of emails.
6. It is acceptable for a hearing to be partly paperless. For example, in a routine financial remedy case involving oral evidence it will be commonplace for a witness to work from a paper bundle, while the judge and counsel are paperless.
7. Nothing in this Protocol limits the parties from agreeing, with the consent of the court, to use an e-bundle service from a commercial provider.
For guidance on how to prepare and amend such a bundle on a Mac see - (link to video)
Hon Mr Justice Mostyn
3 March 2020
ACCELERATED FIRST APPOINTMENT PROCEDURE IN FINANCIAL REMEDY PROCEEDINGS IN THE FINANCIAL REMEDIES COURT (“FRC4”)
1. This Procedure has been approved by Mostyn and Moor JJ on behalf of the High Court judiciary.
2. This procedure does not derogate from the underlying philosophy of the procedure in Family Procedure Rules 2010, Part 9, and the key principle of judicial case management from an early stage in financial remedy proceedings. It is anticipated that the position for the large majority of cases will be for there to be a personally attended First Appointment where parties can hear for themselves what arguments are being advanced on their behalf, hear the judge’s reaction to them and hear what has been spent on costs so far and what is likely to be spent if the dispute continues.
3. This procedure is considered to be fully compliant with all the relevant provisions of the Family Procedure Rules 2010.
4. This procedure is intended to provide a method for avoiding the personal attendance of parties and legal representatives at First Appointment hearings in the Central Family Court in a limited number of cases where the parties have been able to agree directions in advance, where personal attendance is likely to have little purpose and where the benefits of personal attendance are likely to be heavily outweighed by the costs incurred by personal attendance. An example of such a case would be where it is obvious that a particular asset – perhaps the former matrimonial home – needs to be valued before meaningful negotiations can take place and but where the facts are otherwise broadly agreed.
5. The procedure may be utilised in cases falling into Family Procedure Rules 2010, Part 9, Chapter V (in particular Children Act, Schedule 1 and Matrimonial Causes Act 1973, Section 31 applications) where both parties agree (and invite the judge to approve under Family Procedure Rules 2010, Rule 9.18A) that the Chapter IV procedure should be adopted.
6. This procedure will only be available where:-
(i) there is a draft agreed Directions Order in the standard form set out in the annex below which is agreed by both parties and signed by them (or on their behalf);
(ii) the required documents together with the signed draft agreed directions Order have been filed with the court by email at least 14 days prior to the date fixed for the First Appointment hearing; and
(iii) the email has been sent to the following address:-
Accelerated First Appointment Procedure
Application relating to hearing at [ ] on [ ]
(iv) a District Judge has approved the draft agreed Directions Order in advance of the hearing.
7. The required documents for the purposes of paragraph 6(ii) are:-
(i) the body of (but not the attachments to) each party’s financial statement in Form E filed in accordance with Family Procedure Rules 2010, 9.14(1);
(ii) each party’s First Appointment documentation filed in accordance with Family Procedure Rules 2010, 9.14(5) namely;
a. a Concise statement of issues
b. a chronology
c. any questionnaire sought to be answered (not exceeding 4 pages)
(iii) any other documentation vital to the court’s ability to approve the draft consent order.
8. It is expected that an application correctly filed at the Financial Remedies Court in accordance with this procedure will be considered by a District Judge and a response given by email (whether to approve the order or not to approve the order) at least 7 days prior to the date fixed for the First Appointment hearing. The District Judge will ordinarily only give short reasons for declining to approve the order. [The District Judge may decide to contact the parties by email or telephone if clarification of any matters may lead to approval of the order. Orders will not be approved where provision is made for further questionnaires to be raised which the District Judge has not had the opportunity to consider. For the avoidance of doubt, if the court does not approve the draft agreed Directions Order then the First Appointment will proceed at a hearing on the due date in the normal way and so the parties should not make arrangements on the assumption that a Consent Order will be approved. If no response has been received from the Financial Remedies Court in accordance with the above timescale then a request for a response should be made to the same email address above, marked “Accelerated First Appointment Second Request”.
9. This procedure cannot be used where the parties wish to dispense with a Financial Dispute Resolution (FDR) hearing. Accordingly, an agreed Directions Order must make provision for an FDR hearing or identify the date for an agreed private FDR. For a Court FDR the parties should insert the words “on the first open FDR date after “x.x.xx” The date should not be more than 3 months from the date of the listed First Appointment. If a later date is required (e.g. for an expert’s report) the reason must be clearly stated. The FRC list office try to assist the parties and their advisers by listing a date in accordance with a list of dates to avoid that must be provided with the application but this must not unduly delay the FDR. For Guidance if the delay occasioned by availability of counsel exceeds 4 week it will generally be considered excessive and the matter listed on the first available date. Formulations such as “on a date to be fixed by counsels’ clerks in accordance with counsels’ convenience” will not be acceptable. FDR hearings will ordinarily be listed at 10.00 am with the parties ordered to attend by 9 am to commence negotiations.
10. This procedure cannot be used where the parties wish the FDR to be heard by a High Court Judge. Parties wishing their FDR to be heard by a High Court Judge have the choice of making such an application at the First Appointment hearing or, if the circumstances are appropriate, following the “Statement on the Efficient Conduct of Financial Remedy Proceedings Allocated to a High Court Judge Whether Sitting at the Royal Courts of Justice or Elsewhere (Revised 1.2.16)” the revised Efficient Conduct Application”
11. Time Estimate The time estimate for an FDR will, save where appropriate, be one hour. If more than one hour is sought then the parties must set out in the application a detailed justification for this. The District Judge may accept the justification or exercise a discretion to reduce the time estimate to one hour. The emphasis is on enabling the parties to have a successful FDR.
12. Private FDRs. The Financial Remedy Court encourages the use of Private FDRs. If the parties have agreed a Private FDR the date should be given. The court will then list the matter for mention only (ie 5 mins) which will be vacated upon the parties providing to the court the agreed Final Consent order and the completed Forms D8. If the private FDR has been unsuccessful before the matter may be listed for hearing the matter must be restored for a Case management hearing this should be made available within 4-6 weeks of the listed mention where possible in front of the trial judge who will make directions and list the matter for trial. In standard cases the time slot for a CMH is 1 hour, in Complex cases the time slot will be 2 hours. In exceptional cases a different timeslot may be sought.
13. In drafting a Consent Order in accordance with this procedure the parties should address issues relevant to Family Procedure Rules 2010, Rules 9.15(1),(2),(3) & (7) and, if experts are involved, Family Procedure Rules 2010, Rule 25 and Practice Direction 25D, and the directions sought must be intended to address these matters.
14. It is anticipated that the proper order for costs on any application in accordance with this procedure will be “costs in the application”, but other formulations may be permitted if they are agreed between the parties.
His Honour Judge Bedford
Designated Family Judge for Sussex
6 April 2020
The last two weeks have seen many meetings; the Leaderships judges were addressed by the Lord Chief Justice, there was a Skype meeting of all the DFJ of the SE circuit with the Family Division Liaison Judges, a Skype meeting of judges from each of our local courts and in addition we are continuing to receive developing guidance.
We have now received Mr Justice MacDonald’s “Remote access Family Court” version 3. Whilst this is a somewhat heavy document I would commend it to you as it provides an accurate, balanced picture of where are now in terms of remote hearings and where we might reasonably expect to get to. As each version is produced, the changes are highlighted in red making easy to dip into and see what is new.
The President has provided further guidance;
Coronavirus Crisis: Guidance on Compliance
Family Court Child Arrangement Orders
The guidance sets a context for dealing with private law applications in the current crisis and is essential reading for those advising parties, and for parties themselves, in these unique circumstances. It sends the clear message that parental responsibility is exactly that.
The Covid Committee met on Monday and Friday of last week.
The area we are concentrating on locally is developing reliable ways for Court hearings by video link.
I think there is a real tension here, because on the one hand the State must provide a Justice system that continues to function. In our Jurisdiction children need decisions to be made, and parents cannot be expected to wait until we find solutions to this unprecedented situation.
On the other, we must not relax our determination to provide a fair system. As the President reminds us:
“Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.” (27/3/20)
We must be conscious of the perception of the families involved and the article for the Transparency project which sets out how a remote hearing was experienced by a lay party is vital reading for us all.
The President has made it clear that a number of cases will need to be adjourned, and then prioritised back into the system as part of the recovery period. I have asked Local authorities to keep a log of adjourned cases, and recommend priorities. I intend to reactivate my Local Authority Forum where I meet with all three authorities with a view identifying best practice.
We now have Local Protocols for FHDRA’s and Domestic violence in junctions which are sent with this message, with thanks to District Judge Harper, Kim Richardson of CAFCASS and District Judge Clarke.
The current national message is that there can continue to be face to face hearings where justice requires it and a remote hearing is insufficient, so long as it is safe to do so. The family Court at William Street is best suited to social distancing, and we are setting up systems to try to make this as safe as possible. In addition, MoJ has just entered into a new cleaning contract and the signs are good so far as improved performance is concerned. If we do go ahead with face to face hearings it is absolutely essential that everyone follows the social distancing guidelines to the letter. I appreciate that many practitioners will not want to attend face to face hearings for the time being – each case will have to be looked at individually but it may be possible for there to a mixture of physical and remote attendance and one judge is trying that in the coming days. Other judges are very much against it, but as I have said, each case will need to be looked at individually.
An ongoing difficulty is the need to ensure parents have access to technology so that they can participate not only in remote hearings but also in the increasing number of “remote assessments.” In relation to the latter I have asked for the 3 local authorities to advise me what remote assessments are being undertaken, and which assessments are simply not viable for remote work (for example PAMS and cognitive assessments have been mentioned.) I have asked that when seeking out experts, the enquiry should ask the expert whether they will be intending to carry out the assessment remotely and if so, how they will achieve that and why they say that the integrity of the assessment will not be jeopardised. I think it is important to grapple with this at the outset.
I have asked the three authorities to look at creative ways in which they can facilitate and support parents having access to the necessary technology, and this will be on the agenda at upcoming local authority forum meeting.
Finally, we are expecting some guidance shortly from the DfE as regards contact for children in care.
I would like to thank everyone for their ongoing support. At the top of my list are the heroic Court staff, who are still coming into the Court building, and keeping the system going. Our professional lives are not getting any easier and are likely to be even harder in the weeks to come but I am confident if we continue to work together we will cope.
HHJ Robin Bedford.
Designated Family Judge for Sussex.
CAFCASS Covid Operation
In response to Covid-19 – 25/03/2020
Court Ordered Activities
• Child Contact Activities (CCI)
• Support for Separated Parents Information Programme (SPIP)
• Domestic Abuse Perpetrator Programme (DAPP)
• DNA testing
Due to the current Government advice on restricting movement, and increasing numbers of providers having to close centres due to the impact of COVID-19 on resources, the following temporary actions have been agreed with the President of the Family Division:
CCI, SPIP and DAPP
From Wednesday 25th March, courts will suspend any new ordering of CCI, DAPP and SPIP contact activities until further notice
Courts can continue to order DNA testing as we are currently able to use DNA samplers to undertake this on our behalf. However due to restricted capacity, orders should only be made where this is critical for the progression or conclusion of cases and/or where there would be significant risks to the case by not doing this. NCT will keep courts updated on any change to this position.
Cafcass continue to work with providers with open referrals to support working with parents in a different way. We have approximately 4,700 open SPIP referrals, 570 CCI referrals and 420 DAPP referrals.
Volume of work in both public and private law
Cafcass will prioritise work on those cases in which there is a hearing listed, on the understanding that HMCTS will have applied its own criteria to list cases according to urgency. Where Cafcass attendance is considered necessary, FCAs will be expected to attend remotely. If Cafcass is not able to provide an FCA to attend as a result of a reduction in staff capacity, they will inform court and express a view as to whether the case can proceed in their absence or the hearing has to be adjourned. It will be for the court to determine which.
In response to all applications that come within the Child Arrangements Programme, Cafcass will provide the court with the safeguarding letter no later than 3 days before the FHDRA and will not be expected to file it within 17 working days of receipt of the application. If the court makes an order for a safeguarding letter to be provided, it should not direct that it be filed more than 3 days before the hearing.
Every DFJ should be in regular contact with their local CAFCASS lead and to engage in discussion about resources and gatekeeping against the background of the local circumstances as they change and develop.