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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Obviously, when a married couple separate one of them is likely to remain living in the former matrimonial home, even if just for a limited period.

But this of course means that the party who left will have their interest in the property tied up, with them receiving no benefit from it.

Wouldn’t it be fair if the party still enjoying occupation of the property should pay rent to the party who left?

The answer to that is: ‘perhaps’, as a recent case, which has made headlines in the national newspapers, demonstrates.

The case concerned a couple who had lived in a five-bedroomed house in Kensington, which was owned by the husband. The marriage broke down and the husband left the property in 2014.

In 2016 the couple agreed a divorce settlement, whereby the wife was to receive a settlement of £11.5 million. She received an initial £6.5 million and was due the balance when the house was sold. However, the sale was delayed in the difficult post-Brexit referendum property market, and did not take place until 2019.

The husband demanded that the wife, who continued to occupy the house until it was sold, pay him £600,000 in back-dated rent, at the rate of £5,000 per week. The wife refused, claiming that she had the right to live in the property rent-free, until it was sold.

The husband took the matter to the court and last year the High Court ruled in favour of the wife. The husband recently appealed against that decision to the Court of Appeal, which will give its decision at a later date.

The decision of the High Court may be thought to suggest that a spouse living in the former matrimonial home cannot be forced to pay occupational rent, as it is called, to the other spouse. However, that is not so.

It is quite possible for a divorce settlement to include an occupational rent provision. The point in this case is that the settlement did not include such a provision, and the husband argued that such a provision should be inferred. Obviously, the High Court did not agree.

It is also possible in certain circumstances for a court to order a spouse to vacate the matrimonial home, and then order that the other spouse should pay them an occupational rent, although such orders are quite rare.

Obviously, anyone considering claiming occupational rent from their (former) spouse should first seek the advice of an expert family lawyer. 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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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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We have written here previously about the divorce of Tatiana Akhmedova, former wife of Farkhad Akhmedov, the Russian oligarch and ally of Russian president Vladimir Putin.

In 2016 Ms Akhmedova was awarded a divorce settlement of £453 million by Mr Justice Haddon-Cave in the High Court. It was, and remains, the largest ever divorce award by a court in this country.

Unfortunately, however, Mr Akhmedov has failed to pay the award, and Ms Akhmedova has therefore been endeavouring to enforce payment.

The case has now returned to court as part of those efforts to enforce the award. Ms Akhmedova alleges that Mr Akhmedov transferred cash and assets to their son Temur, in order to avoid paying her the money. Mr Arkmedov and Temur deny the allegation.

The allegations have led to a breach between Ms Akhmedova and Temur, who is reported to have said that he would “never be reconciled” with his mother because “her outrageous, revengeful behaviour” has destroyed their once close relationship.

The case may obviously be interesting to the general public because of the people and amounts of money involved, but can those of ‘ordinary’ means who are going through divorce learn anything from it?

They certainly can. There are at least two lessons that apply in most financial remedy cases.

The first lesson is that getting a financial award is not necessarily the end of the matter. In fact, it may be only half of the battle. An award is of no value if it is not paid, and all too often the party ordered to make payment fails to do so, necessitating enforcement action by the party to whom the award was made.

And enforcement action can be long and expensive, as this case demonstrates. In short, anyone seeking a financial award from the court on divorce should understand that getting an award is not necessarily the end of the matter, and should be prepared to ‘be in it for the long run’.

The other lesson is that long acrimonious divorces can destroy families, with children and other family members ‘taking sides’. As we have seen, this can cause irreparable damage to family relationships.

Now, there may not have been anything that Ms Akhmedova could have done to prevent the breach that has happened between herself and her son, but parties should certainly think very hard before they involve other family members, particularly children, in the proceedings.

And protecting the wider family, and especially any children, from becoming embroiled in an acrimonious dispute is just one of the many reasons why parties to divorce should make every reasonable effort to resolve the matter by agreement.

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If you need to sort out financial arrangements on divorce then you should seek expert legal advice. 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 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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The Office for National Statistics (‘ONS’) has published its latest annual statistics for divorces in England and Wales, for 2019.

The headline finding from the statistics is that the number of divorces increased by a huge 18% from the previous year. There were 107,599 divorces of opposite-sex couples in 2019, increasing from 90,871 in 2018.

The ONS does warn, however, that the scale of this increase partly reflects that divorce centres were processing a backlog of casework in 2018, which is likely to have translated into a higher number of completed divorces in 2019.

Nevertheless, the rise in the number of divorces may be significant, resulting in the highest number of opposite-sex divorces recorded since 2014, when 111,169 divorces were granted in England and Wales. It is also the largest annual percentage increase in the number of divorces since 1972, following the introduction of the Divorce Reform Act 1969, which made it easier for couples to divorce upon separation.

The statistics also show that there were 822 divorces among same-sex couples in 2019, nearly twice the number in 2018. This perhaps reflects that more time has passed since same-sex marriage was legalised in 2014.

Other findings from the statistics were that unreasonable behaviour was once again the most common reason for opposite-sex couples divorcing in 2019, with 49% of wives and 35% of husbands petitioning on these grounds (it was also the most common reason for same-sex couples divorcing, accounting for 63% of divorces among women and 70% among men), and that in 2019 the average (median) duration of marriage at the time of divorce was 12.3 years for opposite-sex couples, a small decrease from 12.5 years in the previous year.

Kanak Ghosh, of the Vital Statistics Outputs Branch at the ONS commented:

“Same-sex couples have been able to marry in England and Wales from March 2014. Since then, we have seen the number of divorces of same-sex couples increase each year from very small numbers in 2015 when the first divorces took place, to more than 800 in 2019, reflecting the increasing size of the same-sex married population in England and Wales.

“While we see that 56% of same-sex marriages were among females, nearly three-quarters of same-sex divorces in 2019 were to female couples. Unreasonable behaviour, which includes adultery, was the most common ground for divorce among same-sex couples this year as almost two-thirds of couples divorced for this reason.”

You can find the ONS statistical bulletin here.

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A multi-disciplinary group of family law experts has recommended that in any dispute between parents over arrangements for children the rights of the children be put first, and that the court should be the last resort in resolving the dispute.

The Family Solutions Group was formed earlier this year, with a brief to give fresh and focused attention to improving the experiences of, and opportunities for, separating families away from the Family Court. The Group’s report What about me?: Reframing Support for Families following Parental Separation, has just been published.

The report observes that the current processes for resolving disputes over arrangements for children (in or out of court) tend to operate largely for parents. The group proposes the creation of a framework of directly accessible community-based services for children and young people whose parents separate, offering them information, consultation, support and representation.

The group also recommends that there be a presumption that all children and young people aged 10 and above be heard in all issue-resolution processes outside of the courtroom.

As to court proceedings, whilst the group acknowledges that the need for swift and unimpeded access to the Family Court is rightly recognised as vital for some families, particularly where there are safety concerns, the group nonetheless reframes how we should consider the arrangements for issue resolution in and out of the court system. Significantly, it encourages all involved in such disputes to recognise the fact that many parental disagreements about children following separation are not legal disputes, and that a legal response may indeed be unhelpful for many families.

Commenting on the report the President of the Family Division Sir Andrew McFarlane said:

“It is thought that about 40% of all separating parents bring issues about their children’s care to the Family Court for determination, rather than exercising parental responsibility and sorting problems out themselves. This figure is both startling and worrying. Where there are no issues of domestic abuse or child protection, parents ought to be able, or encouraged, to make arrangements for their own child, rather than come to a court of law and a judge to resolve the issues.

“The number of these private law applications continues to increase, and the trend is that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be in all cases where domestic abuse or child protection are not an issue.”

You can read the full report here.

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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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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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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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As any Family Law Café customer will know, technology can be a blessing, reducing the stress involved in family disputes, by ensuring that you can request answers to questions and have access to documents, whenever you wish, and wherever you are.

But technology can also be a curse if its user is not careful, as a High Court judge recently discovered.

Mrs Justice Judd was dealing with a very sad child care case in which the child’s brother had died after suffering a catastrophic head injury. A fact-finding hearing was fixed, for the court to decide who, if anyone, was responsible for the injury.

The hearing was a ‘hybrid’ one, as are many hearings during the pandemic, taking place with some parties in court and other parties taking part remotely, via video link.

The child’s mother appeared in court. In the course of her evidence she complained of feeling unwell, on one day with back pain and blurred vision, and on the next day she said she had developed a cough. The hearing was stopped, and the mother allowed to go home.

The judge then returned to her room, and her laptop was brought to her. The judge then had a conversation with her clerk on the telephone, in which she made pejorative remarks about the mother, suggesting she was feigning illness to avoid answering difficult questions.

Unfortunately, the conversation was heard by the parties who had been taking part in the hearing remotely, as the video link on the laptop was still open.

The mother asked Mrs Justice Judd to recuse (i.e. excuse) herself from the case on the basis of bias. However, Mrs Justice Judd refused. The mother appealed against that decision.

The Court of Appeal allowed the mother’s appeal, finding that Mrs Justice Judd’s remarks about the mother would lead a fair minded observer to conclude that there was a real possibility that she was biased.

Accordingly, the case was remitted back for rehearing, before a different judge.

The case is obviously an example of when a judge should recuse themselves for possible bias, but it also has a moral for all of us: when using technology, make sure that anything that is private or confidential remains just that. Whatever technology you use for such matters should be kept secure, and if necessary password-protected. And remember to log out of secure sites like ours when you have finished using them!

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The Ministry of Justice has announced a ‘major overhaul’ of how the family courts deal with domestic abuse.

The overhaul is in response to a report by a panel of experts which looked at the risk of harm to children and parents in cases involving disputes between parents about the arrangements for their children. The panel raised concerns that victims of domestic abuse and children were being put at unnecessary risk.

The new measures announced by the Ministry included:

– Giving an automatic entitlement for special measures in the courtroom for victims of domestic abuse going through the family courts, such as separate waiting rooms, separate building entrances and protective screens to shield them from their alleged abuser in court.

– Giving judges stronger powers to prevent abusers repeatedly dragging a victim back to court over child arrangements.

– Trialling an investigative, problem-solving approach in private family law proceedings, in order to reduce conflict. This could see judges decide what evidence to investigate, rather than both parties presenting their cases against each other.

– Reviewing the presumption of ‘parental involvement’ and whether the right balance is struck between the risk of harm to children and victims, with the right of the child to have a relationship with both parents.

Commenting on the measures Dame Vera Baird QC, Victims’ Commissioner for England and Wales said:

“This panel of experts has dug deep to understand, and address, the serious harm to domestic abuse victims and their children caused over many years by the presumption of contact, and the intensely adversarial process present in the family courts.

“With children’s voices rarely heard in these proceeding and even more rarely heeded, victims and children are in need of better protections from abusive perpetrators.

“I welcome the report, its recommendations, and the implementation plan which will help to address these, and other concerns. It has my full support. And I call on the government to action this as a matter of urgency.”

You can read the report here.

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If you would like to know more about protecting yourself from domestic violence and abuse, 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 Cafe 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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The Divorce, Dissolution and Separation Bill, under which a system of no-fault divorce will be introduced, has passed through both houses of parliament. The Bill now just requires the Royal Assent before it becomes law.

However, the Lord Chancellor Robert Buckland QC has warned that the new law is unlikely to be implemented until autumn 2021, as “time needs to be allowed for careful implementation”. This will include the making of the necessary rules and procedures to give effect to the law, which will obviously be quite different to the present system.

All of which begs the question: what do you do if you want to commence divorce proceedings? Do you proceed under the present law, or wait for the new law to come in?

At the moment, in view of how far the new law is still away, the answer must generally be that you should proceed now, unless you will have to wait anyway for the requisite period of separation to elapse. (If you can’t or don’t want to issue divorce proceedings now on the basis of the other party’s adultery or unreasonable behaviour, you have to wait until you have been separated for two years if the other party consents to the divorce, or for five years if they do not consent.)

However, as we get closer to the introduction of the new law, then more and more people will no doubt prefer to wait, rather than have to apportion blame for the marriage breakdown under the present system.

And if you believe that your spouse will defend divorce proceedings, then it may be more appropriate to wait, as defended divorce proceedings will not be possible under the new system.

If you want further advice as to whether to commence divorce proceedings you should consult an expert family lawyer. Family Law Café can put you in touch with such a lawyer – for further information, call us on 020 3904 0506, or click here, and fill in the form.

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Family Law Cafe 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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Just like most other areas of society the family courts have been adversely affected by the COVID-19 pandemic. In particular, the lockdown and need for social distancing have meant that many court hearings have had to be conducted remotely.

The President of the Family Division Sir Andrew McFarlane has now published details of how the family courts will operate for the remainder of the pandemic, in a document entitled The Road Ahead.

Perhaps the most important point that the President makes is that it is likely to take much longer than many had hoped for the family courts to get back to normal. Sir Andrew makes it clear that he does not expect this to happen before the end of the year, and perhaps not until next spring.

This means in particular that, whilst all court buildings should be open again by next month, court hearings will continue to be predominantly conducted remotely.

Many people have raised concerns about the fairness of remote hearings, particularly where a party or witness does not have a lawyer. The President made it clear that in such cases consideration should be given to the hearing taking place in court, or to there being a “hybrid“ hearing, where (for example) a parent or witness gives their evidence in court, but the rest of the hearing takes place remotely.

The President has also set out a series of guidelines to ensure that remote hearings are as fair as possible. These include keeping the hearing to a reasonable length, and including short breaks; advocates ‘meeting’ with their client both before the hearing to explain what is going to happen, and after the hearing to ‘de-brief’ their client; ensuring that parties can give instructions to their lawyers during the hearing; and, where the hearing involves a litigant in person, the judge should ‘check in’ regularly with any litigant in person to ensure that they are hearing, understanding and following the proceedings.

The President however makes it clear that remote hearings should always be conducted with the same degree of seriousness and respect as fully attended hearings.

You can read The Road Ahead here.

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Family Law Cafe surrounds and supports the customer with both legal and pastoral care, end to end, from top barristers to case workers to therapists and mediators, to help the customer get the best possible result with the minimum stress. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.

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The Coronavirus pandemic and resulting lockdown is having a significant impact upon how the family justice system is operating. As we explained in an earlier post, one effect is that court hearings are now being conducted remotely, where possible.

Remote hearings involve one or more of the participants (judges, lawyers, parties and witnesses) taking part remotely, via telephone or video link.

As indicated, it is not possible for all family court hearings to be conducted remotely. This may be because the hearing is not suitable to be dealt with remotely, or simply because the required technology is not available to all participants.

But what is the experience of those who have taken part in remote hearings? Do they think that it is a good or a bad thing?

Last month the President of the Family Division Sir Andrew MacFarlane commissioned an urgent inquiry into the effectiveness of remote hearings used in the family justice system. The inquiry sought the views of interested parties, including judges, lawyers, Cafcass officers and parents. Well over one thousand people responded.

Most of the respondents had taken part in a remote hearing, dealing with various kinds of family cases. The hearings were of all types, including directions hearings, interim hearings and final hearings.

The respondents were asked whether they were broadly positive or negative about their experiences of remote hearings.

There was an even balance in positive and negative responses to remote hearings. This reflected the fact that many respondents felt that remote hearings were justified in some cases in the current circumstances, even when they raised serious concerns about remote hearings in relation to other types of cases.

As to the figures, 22% were positive, 21% were negative, and the other 57% said that there were both negatives and positives about remote hearings. Almost all felt that remote hearings were justified in the current circumstances, although not necessarily for all cases. Some felt that remote hearings were justified for some cases both now and in the future, and only a small number of respondents were against remote hearings in principle.

Notwithstanding the views of some, it does appear that remote hearings will be with us at least until the pandemic is over, and very possibly after that. All users of the family courts will therefore have to be prepared for the possibility of their case, or at least part of it, being conducted remotely (hearings that can’t be conducted remotely will still have to take place in court, subject to social distancing rules).

Of course, they will also have to be prepared to wait longer for hearings to take place, as the courts will not be able to conduct the same number of hearings as they do in ‘normal’ times. Even more reason than usual to try to avoid court by settling your case, and getting expert help as soon as possible.

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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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