Parents involved in court proceedings regarding their children have expressed concerns over the use of remote hearings, via video or telephone, which have become commonplace during the pandemic.

Responding to a consultation on remote hearings commissioned by the President of the Family Division, 73% of parents indicated that they did not feel supported during their hearing(s).

Just under half (46%) did not have legal representation, and others raised concerns about not being able to be with their legal representative during the hearing, and the difficulties communicating with them as a result.

Two in five reported that they had wanted to attend court but had been prevented from doing so.

More than 3,200 professionals (lawyers, magistrates, judges, social workers and others in the family justice system), parents and other family members from across England and Wales responded to the consultation, which was carried out by Nuffield Family Justice Observatory, an organisation which aims to improve the use of data and research evidence in the family justice system.

The majority of professionals responding to the consultation saw a continuing role for certain types of remote hearing, though raised concerns that hearings were often remote ‘by default’ and that considerations such as the vulnerability of lay parties and their wishes and views, the complexity of the case, and whether there was access to suitable technology for all those taking part should be taken into account.

However, nearly two-thirds of professionals felt that more needs to be done to ensure that remote hearings were fair and worked smoothly.

Suggestions to improve how remote hearings were run included making sure lay parties and their representatives were better prepared for the hearing, checking access to technology/links before the start of the hearing, providing better written guidance to parents and professionals and improving the technology.

Lisa Harker, director of Nuffield Family Justice Observatory, commented:

“There is a clear disconnect between the measures professionals can see would help remote hearings run more smoothly – particularly for parents and family members – and what is still happening in some family courts. Many of the suggestions for improvements are neither complicated nor new, so it is vital to understand why they are not being put into practice. Families must feel that they have had fair access to justice in what are some of the most life-changing cases heard in courts – and that must apply to remote hearings too.”

It now seems clear that remote technology will continue to be used after the pandemic, at least for some types of court hearings. However, the benefits that they bring should not come at the cost of fairness to the parties involved.

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The Law Society, the professional body for solicitors in England and Wales, has warned that the inappropriate use of remote court hearings may impede justice and the rule of law in the family courts.

The warning comes in the Society’s response to a consultation by the Nuffield Family Justice Observatory (‘NFJO’) evaluating the role of remote hearings in the family justice system.

Remote hearings, via video conferencing or telephone, have of course been widely used during the Covid-19 pandemic, as social distancing measures have made the use of courtrooms problematic. The consultation is intended to inform how the family courts and should operate during the court ‘recovery’ period following the pandemic.

Law Society president I. Stephanie Boyce said: “Remote hearings have generally found a suitable place in the family justice system … In some instances, they have removed family tensions, made emergency hearings simpler to attend and been more convenient and efficient for advocates, parties and judges.

“However, the biggest factor in deciding whether a hearing should be remote or in person must be any potential impediment to access to justice. If parties feel they can’t fully participate and understand what’s happening, in-person hearings should be the default format.”

She went on: “Parties who lack the appropriate technology (such as good WiFi or relevant hardware), aren’t technologically literate or who need an intermediary or translator may struggle to feel fully involved in remote hearings … Some litigants in person – parties without legal representation – are also struggling with remote hearings, especially when they are complex. This causes difficulties in accessing justice and being able to fully participate, which also causes delays to hearings.”

She suggested that ‘hybrid’ hearings, in which some participants take part in court and others remotely, may be a compromise. However, Law Society members have said that these can be much longer, and the technology isn’t always adequate. The Society says that if they are used in future, ways of improving their effectiveness should be analysed and implemented.

The NFJO consultation ended on the 27th of June. The NFJO will report upon the results of the consultation, and its report is likely to have a substantial bearing upon decisions as to what aspects of remote working should be retained after the pandemic.

The NFJO supports better outcomes for children in the family justice system in England and Wales by improving the use of data and research evidence in decision-making.

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The Court of Appeal has given guidance upon the approach that the Family Court should take to allegations of domestic abuse when dealing with disputes between parents over arrangements for their children.

As we mentioned here in this post, the court was hearing four linked appeals by mothers involved in proceedings relating to their children, in which the mothers had raised issues of domestic abuse.

As the Court of Appeal pointed out, allegations of abuse are often made by one or both parents in children cases. In fact, it is estimated that at least 40% of such cases now involve allegations of domestic abuse.

When allegations are made, the court must decide, usually at an initial ‘fact-finding’ hearing, whether they are true and what effect, if any, they should have upon the arrangements for the children.

This can obviously be a difficult task, balancing on one hand the safety and welfare of the child, and on the other hand the ‘right’ of the child and parent to have a continued and full relationship.

The guidance given by the Court of Appeal focussed primarily upon the issue of coercive and controlling behaviour.

Coercive and controlling behaviour involves one party seeking to restrict the other, over a period of time. It can take many forms, such as the abuser preventing the other party from spending time with their family and friends, or controlling them by restricting their access to money.

Emphasising the importance of such behaviour, the Court of Appeal said that the courts should prioritise consideration of whether a pattern of coercive and/or controlling behaviour is established, over and above the determination of any specific factual allegations.

The Court of Appeal stated that where one or both parents assert that a pattern of coercive and/or controlling behaviour existed, that assertion should be the primary issue for determination at the fact-finding hearing. Any other, more specific, factual allegations should be considered because of their potential relevance to the alleged pattern of behaviour, and not otherwise, unless any particular factual allegation (such as an allegation of rape) was so serious that it justified determination irrespective of any alleged pattern of coercive and/or controlling behaviour.

The guidance was welcomed by Lucy Hadley of the domestic abuse charity Women’s Aid, although she expressed concern that it did not go far enough, saying:

“…we are severely disappointed that the Court of Appeal did not call for an end to the ‘contact at all costs’ approach, which is putting women and children experiencing domestic abuse in danger … We fear this judgment has not recognised the urgent need for wholesale reform to make the family courts safe for survivors. We will continue to fight for a change to the presumption of parental involvement in domestic abuse cases – for good.”

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If you are a victim of domestic abuse you should seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Last week the Ministry of Justice published its latest statistics for cases dealt with by the Family Court, for the quarter October to December 2020.

The headline from the statistics was that there were 68,634 new cases started in Family courts in October to December 2020, which was up 6% more than the same quarter in 2019. This was due to increases in most case types: domestic violence (21%), financial remedy (8%), matrimonial (5%) and private law (3%) cases.

On the other hand, the annual figures paint a rather different picture. Annually, there were 264,091 new cases started in Family courts throughout 2020, which was very similar to 2019, when 266,059 new cases were started.

Perhaps the most important figure, however, was the increase in domestic violence (abuse) cases. The number of domestic violence remedy order applications increased by 19% compared to the equivalent quarter in 2019, while the number of orders made increased by 20% over the same period. There were 35,984 applications and 39,427 orders made throughout 2020, up 20% and up 17% respectively from 2019.

These statistics confirm fears of an increase in the incidence of domestic abuse during lockdown, as couples are forced to live together.

The statistics also showed an increase in the average time for divorce proceedings. The mean average time from petition to decree nisi was 30 weeks, and decree absolute was 56 weeks – up 2 weeks and 4 weeks respectively when compared to the equivalent quarter in 2019. The median time to decree nisi and decree absolute was 20 and 39 weeks respectively.

However, once again the annual figures paint a slightly different picture. Throughout 2020 the mean time from petition to decree nisi was 28 weeks and 53 weeks to decree absolute, each down 3 weeks respectively.

A statistician commented on the figures:

“The impact of Covid-19 continues to be seen across family court activity this quarter, with noticeable recovery as work levels return to pre-lockdown levels (seen in the number of new cases started and disposed across most areas since the first lockdown period). The negative impacts on timeliness measures continue, with work progressing to address the impact to the family justice system.

“Domestic violence remedy levels remain high, with substantial increases in both new cases starting and cases with a final disposal – up 21% and 38% respectively compared to quarter 4 2019…

“It may be some time until improvements as a result of recovery measures taken begin to show, particularly relating to timeliness measures as outstanding cases are dealt with. Nightingale courts continue to be used to help cope with demand and help the court system to run as effectively and safely as possible during the coronavirus outbreak.”

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Last week the President of the Family Division Sir Andrew McFarlane announced that the new Financial Remedies Courts (’FRCs’) are now ‘live’ across all areas of England and Wales.

For the benefit of those who don’t know, the term ‘financial remedies’ refers to all family court proceedings relating to financial issues. These primarily consist of proceedings relating to the financial settlement on divorce, but also include other types of proceedings, including claims for financial provision for children.

Note that financial remedies does not include child support maintenance claims, which are dealt with by the Child Maintenance Service.

Until recently, financial remedy applications were all dealt with by the local family court. However, in 2016 it was suggested that a national network of specialist courts be set up to deal with financial remedy cases. A pilot scheme was then set up in 2018, to test the idea.

The pilot has now been successfully completed, and the President says that “the FRCs should henceforth be regarded as an established and permanent part of the Family Court.”

But what does this mean for anyone involved in a financial remedies case?

Well, the big thing is that word ‘specialist’. This means both that FRCs are particularly ‘geared’ to deal with financial remedy cases and, in particular, that the judges dealing with the cases will be specialists in financial remedy work.

This in turn should mean that financial remedy cases should in future be dealt with more efficiently, and with better, more consistent, outcomes. Such consistency should also make it easier for lawyers to advise clients, thereby making it more likely that cases can be settled without having to go to court.

Lastly, it should be noted that there are still two types of family-related financial cases that are not currently dealt with by FRCs. These are trusts of land cases (usually involving property claims following the breakdown of cohabitation) and Inheritance Act cases, where a claim is made against the estate of the deceased, often by a family member.

However, the President has expressed the hope that both of these types of case will, in due course, also be dealt with by FRCs.

Whatever type of financial remedy case you are involved in, you should seek expert legal advice. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The family courts are, of course, open to all, irrespective of means or social status. However, a new piece of research indicates that the users of the courts are not spread evenly across all strata of society.

The research was carried out by the Nuffield Family Justice Observatory, which aims to support better outcomes for children, by improving the use of data and research evidence in the family justice system in England and Wales.

The research examines trends in demand by parents in England for the family courts as a means of resolving disputes over arrangements for their children.

The research found that separated parents in England who depend on the family courts to resolve such disputes are likely to live in the country’s most deprived areas. It also revealed a clear north-south divide in the number of applications being made, with rates being consistently highest in the North East, North West and Yorkshire and Humber regions, and consistently lowest in London and the South East.

The figures showed that in 2019/20, 30 per cent of applicants lived in the most deprived 20 per cent of the wider population, whereas just 13 per cent lived in areas in the least deprived 20 per cent.

The research also showed that in 2019/20, application rates in the northern regions ranged between 79 and 81 per 10,000 families with dependent children, but were just 44 per 10,000 in London and 59 per 10,000 in the South East.

And despite these findings, there was also evidence of a ‘justice gap’, due to the abolition of legal aid for most private law family matters (i.e. cases not involving social services) in 2013, with a reduction in the proportion of applications brought by people living in the most deprived areas.

Commenting upon the research the President of the Family Division Sir Andrew McFarlane said: “The body of individuals who come to court with private family law problems are disproportionately represented from areas of which that are the most socially deprived… More cases come from the north of the country than the south. Should we be targeting our resources, attempt to engage with people before they come to court in a more specific way that meets the needs of those groups? I think so. Knowing something about who they are from this research is helpful.”

And the Observatory says: “It is critical that policy makers consider the role of deprivation as a factor in private law cases and its interaction with other factors such as conflict, domestic abuse and other child protection issues. This will be an important step in informing, and possibly reshaping, the response to private law need in both the court and out-of-court context.”

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It is sadly not uncommon for issues of alleged domestic abuse to be raised in applications relating to arrangements for children. For example, a father may apply to the court for contact, only to have the mother oppose the application on the basis of allegations that he had been ‘guilty’ of domestic abuse.

Obviously, the court must investigate the allegations, and decide whether they have a bearing on the issue of contact. But it is a fine line to tread: on the one hand, such allegations must be taken seriously, on the other hand the court must not allow false or exaggerated allegations to interfere with the child’s relationship with (in the above case) their father.

The question of how the family court should approach domestic abuse in cases involving arrangements for children is currently being considered by the Court of Appeal.

Last week the Court of Appeal heard four linked appeals by mothers involved in proceedings relating to their children, in which the mothers had raised issues of domestic abuse. All four mothers raised concerns about how the court below had approached those issues.

As the four cases raised similar questions, it was decided that the Court of Appeal should hear them together.

The hearing has now ended, and the Court of Appeal is expected to hand down its judgment in the next few weeks. If it considers it necessary, it may also provide further guidance upon how the courts should approach the issue of domestic abuse in cases involving children.

There is already guidance that the courts should follow. This requires the court to consider at all stages in children proceedings whether domestic abuse is an issue, and if it is to investigate the matter at the earliest opportunity, and decide what effect, if any, it should have upon arrangements for the children.

However, there are some who believe that the guidance is not being followed, or that it does not go far enough.

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Domestic abuse is obviously a very serious issue in cases relating to children, which can have a significant bearing upon the outcome of the case. Accordingly, whether you are the victim or the alleged abuser you should seek expert legal advice, at the earliest stage. We can find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe’s accessible team of legal experts from various disciplines expedites the customer’s case and keeps them informed and in control 24/7 through a unique and secure online portal. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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As we are sure all will agree, 2020 has been an awful year for everyone. Thankfully, however, there is reason to hope that 2021 will be much better.

And so it is in family law.

The pandemic and resulting social distancing rules hit the family justice system, just as it did every other aspect of society. Court buildings were closed, and judges and court staff had to rapidly adjust to the widespread use of remote hearings, via telephone or the internet.

Whilst the family courts and all involved in the family justice system rose heroically to meet this enormous challenge, inevitably the same volume of hearings could not be dealt with, leading to an increasing backlog of cases.

And justice delayed is a tragedy for all of those families affected, who cannot move on with their lives. This is especially so for the children who have to wait for major decisions to be made about their lives.

But, as with life generally, there is reason to hope that things will be better next year.

Firstly, as we reported here just last week, plans are already afoot to catch up with the backlog of cases. It is, of course, a huge task, and it may well not be completed next year, but hopefully during 2021 there will be a significant improvement in the length of time that it takes for cases to be dealt with.

Another reason for an improvement is that hopefully many court buildings will be reopening, as the danger from the pandemic subsides. This will obviously mean that it will be possible for more hearings to take place in court, rather than remotely.

And it is not just recovery from the pandemic that we can look forward to. There are other reasons to hope for a better family justice future next year.

In particular, no-fault divorce is expected to be enacted in the autumn, the biggest reform to our divorce laws for fifty years. At last we will do away with the need to hold the other spouse responsible for the marriage breakdown in order to get a divorce, and instead be able to concentrate on resolving the important issues such as child arrangements and finances, in a blameless atmosphere.

We wish all who are reading this a safe and happy Christmas, and a better future in 2021.

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The Family Justice Board, which oversees and directs the family justice system, has produced a statement that summarises the priority actions it intends to pursue in response both to immediate pressures within the family justice system, and to bring about longer-term reform.

The Board says that increasing numbers of children have experienced delay to the court proceedings in which major decisions will be made about their lives. Backlogs in private law cases (i.e. children cases not involving local authorities) have increased by 18% since before the start of the March lockdown. For those cases being heard, the average time to conclude a case is now 29 weeks.

HM Courts & Tribunals Service (‘HMCTS’) estimates that private law cases may not return to pre-Covid levels for another three years.

The Board reports that to deal with these issues HMCTS has recruited approximately 900 additional support staff, with currently around 700 further appointments sought; that approximately £3.5m additional funding has helped Cafcass, which looks after the interests of children involved in family proceedings, increase staffing levels to respond to record levels of open cases; and that a programme of recruitment to increase judicial capacity is ongoing.

The Ministry of Justice has also announced additional ‘Nightingale’ courtrooms, to bolster the national effort to tackle the impact of coronavirus on the justice system.

As to the future, the Board says that immediate recovery priorities include “changes to alleviate the backlog of cases growing in ways which ensure risk is identified and the most urgent cases seen first.”

Where appropriate, couples will be encouraged to resolve disputes out of court, for example via mediation, thereby reducing the pressure on the court system.

Another way that pressure may be reduced is by more hearings being dealt with by the court ‘on the papers’, without the parties having to attend court.

Longer term reform plans include a revised system to deal with private law cases, in which issues are identified at an early stage in cases, so that the appropriate resources are allotted to each case. Where relevant, courts will also utilise a ‘problem-solving’ approach to the resolution of cases, whereby the court looks at ways of resolving problems faced by separating families, such as drug and alcohol abuse.

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It goes without saying that family court proceedings can be expensive. Obviously, this can put a less well-off party at a serious disadvantage, with their opponent being able to afford to pay for legal representation, while they cannot.

Legal aid is not available for most types of family law cases, and many people have no other way of funding their legal expenses. What can they do to put themselves on an equal footing?

There may be another source of funding, and it comes from an unexpected direction: the other party. It is possible to ask the court to order the other party to pay a lump sum to cover your legal costs of the proceedings.

We have seen this happen in two recent cases.

The first case concerned a husband’s application for a financial remedies order on divorce. The wife was considerably better off than the husband, who could not afford legal representation. He therefore applied to the court for a legal services payment order, requiring the wife to pay a lump sum to cover his legal expenses. The court made an order that the wife pay the sum of £95,000, to include £58,000 costs already incurred by the husband.

The second case concerned a mother’s application for financial provision for her daughter from the child’s father. The father was considerably better off than the mother, and could not afford legal representation. She therefore applied for a legal costs funding order, requiring the father to pay a lump sum to cover her legal expenses. The court made an order that the father pay the sum of £60,000.

But a word of caution: these costs orders are quite unusual, and will only be made in certain circumstances. In particular, the party applying for the order must satisfy the court that they have no other means of financing the case, and that the order will not cause the paying party undue hardship.

The party applying for the order must also bear in mind that at the end of the case the court may require them to repay such part of the payment as it considers appropriate.

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If you would like to know whether you could apply for a legal costs funding order we can find an expert to advise you, working with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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Remote hearings, via telephone or video link, have become the norm for family courts, since the introduction of social distancing restrictions in response to the Covid-19 pandemic. Obviously, this has been a huge new departure for the family justice system, and it is essential to ensure that the hearings are delivering effective justice, and working as well as possible.

Back in May we reported here upon an early inquiry into the effectiveness of remote family court hearings, which was commissioned by the President of the Family Division and carried out in April by the Nuffield Family Justice Observatory.

In September the Observatory carried out a follow-up enquiry into remote hearings, in which it surveyed some 1,300 people with an interest in the family justice system, including parents, family members and professionals.

The survey found that most professionals (86%) felt that things were working more smoothly than in April, and some even reported benefits to working remotely, such as not having to travel to court and not having to have hostile parties face each other in court.

However, they shared concerns about the difficulties of being sufficiently empathetic, supportive and attuned to lay parties when conducting hearings remotely, although more than three quarters (78%) felt that most or all of the time fairness and justice had been achieved in the cases they were involved with.

On the other hand, a majority of parents and relatives (88%) reported having concerns about the way their case was dealt with, and two thirds (66%) felt that their case had not been dealt with well. Two in five (40%) said they had not understood what had happened during the hearing.

There was agreement between professionals and parents that family justice is not simply administrative adjudication but is dealing with personal and often painful matters which require an empathetic and humane approach, and both expressed concern about the difficulty of creating an empathetic and supportive environment when hearings are held remotely.

Lisa Harker, director of the Nuffield Family Justice Observatory, commented:

“We cannot put the lives of thousands of children and families on hold while we hope for face-to-face practice to resume, and it’s clear that judges, barristers and other professionals have put in enormous personal effort to keep the system moving during very challenging times.

“But equally life-changing decisions must be reached fairly for all involved. The family court is often dealing with incredibly vulnerable people, from victims of domestic abuse to mums being separated from their babies, and they must be supported to fully participate. Our consultation showed great concern among professionals for the experience of traumatised parents facing the system. It also highlighted that many of the issues could be solved with relatively simple measures.”

It is now clear that social distancing restrictions will be with us, in one form or another, for many months to come. Remote hearings will therefore remain the norm for the foreseeable future, and it is for everyone involved in the family justice system to ensure that they work as well as possible.

If you have concerns about how your case will be dealt with, then Family Law Café can put you in touch with an expert family lawyer who can advise you, and work with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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The legal world is changing, perhaps more quickly than ever in history. Ways of doing things, written in stone for decades, if not centuries, are being swept away.

The Covid 19 pandemic may have accelerated them, but these changes have been underway for some time, and are surely inevitable.

We are talking about the move towards conducting family law work online. We are seeing this in particular with remote court hearings due to the pandemic, but before the pandemic there was already a move towards making applications to the court online.

Until recently if you wanted to make an application to the court you had to do so on paper. You then either had to go to the court to issue it, or you had to post it to the court. All of which involved unnecessary work and delay – for example, if the court was not happy with the paperwork, it would post it back to the sender, the sender would have to amend it, and then return it to the court.

Now the age of paper applications is coming to an end. One of the latest manifestations of this is the online child arrangements application.

Back in February the Ministry of Justice and HM Courts & Tribunals Service (‘HMCTS’) launched a new online service enabling parents and their legal representatives to apply to the court digitally to make child arrangements.

The new service is more convenient, faster and avoids many of the errors or omissions that paper applications used to contain, by picking them up during the online process. When it was launched Richard Goodman, HMCTS Change Director commented:

“For parents, it can often be a stressful, challenging time when trying to arrange visits to see children and this system is designed to make that process as straightforward as possible.

“As the court reform programme progresses, we will continue introduce services that make the justice system easier to navigate and more efficient for all those that use it.”

It is already possible to issue divorce proceedings online, and soon almost all family law business will be conducted online (although many hearings will take place in court buildings again, once the pandemic is over).

All of this of course fits in perfectly with Family Law Cafés vision of how family business should be conducted in the twenty-first century. There is no reason now why family law litigants should be required to physically contact their lawyers every time they need information or advice regarding their case, or to rely on the postal service when they wish to take a step in the proceedings.

The modern way to conduct a family law case is online, from wherever you are, whenever you wish.

If you require advice regarding sorting out arrangements for children, Family Law Café can put you in touch with an expert family lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Café offers a modern, agile and compassionate approach to family law, giving you a helping hand when you need it and guiding you through the complexities of this difficult and stressful area. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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