Since the lockdown started our courts have struggled to cope with the routine hearings already listed for hearing, and of course further urgent hearings have arisen since that time. I have observed an increasing number of disputes between separated parents about the arrangements for their children during lockdown. On the whole, there has been a mixed reaction to the way that matters have been dealt with by our justice system and I am only able to comment on the family courts.
My experience has been that ordinary directions or case management appointments in, for example, financial matters on divorce, are dealt with fairly easily on a remote basis. Either the hearings are being dealt with on paper or by telephone. I imagine, however, that the kind of work that involves removing children from their parents because of concerns about their safety, in other words, care proceedings or public law proceedings, must have felt the effect quite differently. I don’t work in the public law area but I can only imagine that such matters will be incredibly difficult to resolve remotely.
When emotions are high and sensitive evidence needs to be given, and findings made on different factual versions, then I imagine it must be extremely difficult for not just the Judge, but all parties involved dealing with this kind of a hearing on a remote basis. As experienced practitioners, we often work out how to approach a particular issue in a case based on the reactions that we see and feel when a person is giving evidence. This ‘body language’ is very important in Family Law cases.
Unfortunately, because of the urgency of some of the matters, these critical hearings have had to proceed on a remote basis and my understanding is that there are many people that feel that their matter has not been dealt with fairly. What will become of these particular cases remains to be seen.
What will be interesting for Family Law practitioners is to see whether the way that financial matters are dealt with in the future is going to change. I think a lot of practitioners have felt that case management hearings are more efficiently dealt with either on paper or by telephone and would like this to continue. There is likely to be an ongoing costs saving for our clients in most of these types of cases, as we are not briefing barristers to attend court for half-a-day and sometimes a day only to spend a lot of that time waiting for the court.
Financial Dispute Resolutions:
The other effect that we see as a result of the lockdown is that more cases, in both financial and private children law, will now be referred for private FDR hearings (in the case of financial matters) and private arbitration in financial matters, and in certain private children law matters. There are still some limited children matters that cannot be dealt with by way of arbitration, but the normal majority of cases can be. People are realising the advantages of arbitration over the court process as the courts become slower and more backlogged in dealing with regular matters. There is a huge backlog of cases going through the system which will take a very long time to process. Before lockdown the courts were already straining at the seams, so one can only imagine what the effect might be now.
It will be interesting to see what happens generally but I think one thing we can be certain of is that we are all more likely to strongly advise our clients to pursue arbitration for the foreseeable future, given the delays and uncertainties currently prevailing within the judicial system when it comes to dealing with Family Law.
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The above is accurate as at 20 May 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.