The future of remote court hearings

the future of remote court hearings

The future of remote court hearings

“If thou never wast at court, thou never sawest good manners”  Shakespeare: As You Like It: Act III Scene II

The President of the family division, Sir Andrew McFarlane, recently gave a speech outlining his opinions concerning the future of remote hearings, and what a post-Covid return to the courts might look like.

McFarlane advocates for Judges being able to adopt a case-by-case approach, “unfettered by any prescriptive diktat from on high”.

Family Law paralegal Nina Rawlings examines what this means in practice and how will it affect those who have spent the past 18 months addressing the court from behind a screen in, for example, their own living room.

First, we must consider the impact that going remote had on the court system and on those of us working in care proceedings. If we diplomatically disregard the initial chaos for many firms, caused – understandably – by the sudden and on the whole unexpected complete closure of the physical courts, what emerged over the coming months were a significant number of positives.

At McAlister Family Law we swiftly adopted an online bundling system, but given that our offices were already entirely paperless, we were, unlike others, entirely prepared. Not only does going paperless have environmental benefits that Greta Thunberg would applaud, but when dealing with confidential disclosure it makes far more sense in our GDPR cautious society for bundles to be sent securely online rather than handing a physical pile of sensitive information over to a stranger.

Furthermore, we will see shortly the introduction of the HMCTS Family Public Law online system in our area; a new digital operating model which seeks to transform the way justice is administered by simplifying, centralising and enhancing the entire process of issuing and monitoring cases. Albeit a project that has been underway since pre-Covid, one cannot help but acknowledge the assistance of increased IT usage resultant of the pandemic in preparing firms for migration onto, and navigation of, the new system.

Attendance at hearings

This is something of a double-edged sword. On the one hand, remote hearings enable barristers and solicitor advocates to cram more into their already busy days. By removing travel time from the equation, in theory it becomes possible to attend more hearings per day and to exist beyond the constructs of your defined geographical area of practice. However, the result of this is the removal of what McFarlane refers to as the “human perspective”. While the remote hearings system may make the process of hearing matters more efficient, it makes the issue of pre-hearing discussions more complex both among the advocates and with the client. Previously, you could simply pop from court waiting room to court waiting room delivering and requesting information as suits, now you need several teams links, some telephone dial-in details, sometimes an interpreter on standby and the client waiting in the wings. Time and space do not exist in the remote hearing sphere and issues which could easily be resolved in person become the subject of a domino-like procession of instruction and communication. Furthermore, in the childcare domain – as I imagine applies across the board – a question of ethics arises: can parties really receive a fair trial over video call? Can we justify removal of children based on evidence given over a telephone?

What is the solution?

McFarlane posits that “remote platforms are good for undertaking transactional communications”, a statement with which I wholly agree. Remote hearings offer a unique opportunity to deal efficiently, and effectively, with case management hearings, re-timetabling, pre-trial reviews and more.

Moving forward this would reduce cost, avoid delays and free up judicial time. However, there must be a careful evaluation by Judges of the case matter of each case in question. It seems to be common opinion amongst those in the profession that any contested hearing, finding of fact, final hearing or urgent hearing must be prioritised in terms of physical attendance as we transition back into the court rooms.

I believe that for certain hearings, each should be determined on a case-by-case basis, not least because there will always be cases where it is not appropriate to conduct the hearing remotely.  That belief therefore indicates a need for a court set-up which allows for both in-person and remote witness evidence. Given how we have adapted our court hearings during the pandemic, doing so does not seem an impossible task. Let’s see what happens.

If you are affected by any of the issues raised here, please do get in touch. We’re here to help you.

UPDATE: Back to school – or not?

back to school or not UPDATE

Back to school - or not?

Recently we blogged about Laurence Fox and his claim that he would take his sons out of school should vaccines be rolled out for 12-year-olds on the basis that he feared they would have the Covid jab without his permission.

Now there has been a case in America where a father in New York has been banned, by a family court judge, from seeing his daughter unless he gets the Covid vaccination.

Family Law Associate Melissa Jones looks at the issues.

This is an interesting scenario. In this particular case, contact was not deemed to be in the best interest of the child on the basis that  the father was opposed to the Covid vaccination. The judge was quite strict in his ruling, notably amid a worrying time in the middle of a global pandemic, and made the following comments:

“The dangers of voluntarily remaining unvaccinated during access with a child while the Covid-19 virus remains a threat to children’s health and safety cannot be understated.

“Unfortunately, and to my mind, incomprehensibly, a sizable minority, seizing upon misinformation, conspiracy theories, and muddled notions of ‘individual liberty’, have refused all entreaties to be vaccinated.”

What happens with contact in the UK if a parent refuses the vaccine?

It’s a possible worry for a lot of parents, but not one that has seemingly featured in the family courts in England and Wales. If this was a matter raised by a parent, within the English Courts, those Courts are likely to be guided by Cafcass, the advisory service to the Courts, to prepare an assessment to consider the risk factors and to decide whether contact is actually in a child’s best interest.

Extreme circumstances

In extreme circumstances, particularly if a child is medically vulnerable, Cafcass and the court may exercise caution: but it would be a rarity.  No doubt the Court would also consider NHS guidance and other expert evidence they consider necessary.  Plus, there are now many modern alternatives to face-to-face contact, such as video contact and voice notes, that could mean the parent and child relationship could be maintained.  It is a child’s right to have a relationship with both parents and the Court will want to maintain that relationship wherever possible.

The court application

If the other parent is strongly opposed to their child being vaccinated (not just the Covid vaccine) and they cannot agree on this, then they could apply to the court for a Prohibited Steps Order and/or Specific Issue Order, which are orders that can prevent certain actions being taken by a parent, and/or making decisions on matters that parents cannot agree upon in the exercising of their rights and duties relating to parental responsibility.  Medical issues fall into these categories.

The court will consider the parents’ opinions and the best interests of the children.

Before making an application to the court, it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to agree to vaccinate your child, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move.

With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re here to help you.

Back to school – or not?

Laurence Fox back to school or not covid children

Back to school - or not?

Laurence Fox, who shares two sons, Winston, 12, and Eugene, nine, with ex-wife Billie Piper, has once again hit the headlines, this time in relation to the “anti-vaxx” row. He has claimed he will take his sons out of school should vaccinations be rolled out for 12-year-olds, saying he fears they will have the Covid jab without his permission.

The question is, can a parent remove a child from school in the first place?

Family Law Associate Melissa Jones looks at the options available.

There is no plan – as of yet – for children in schools to be vaccinated before they return to school in September. But were such a plan in place, would a parent be able to stop their children from going to school? Given that there is a central government policy stating that children must attend school, any parent stopping their child from doing so would be appear to be in contravention of this policy, and likely subject to fines.

Mr Fox appears to be suggesting is that he wants to de-register the children and home school them. To do so, he would need the other parent’s permission as they share parental responsibility (given that they were married to one another) and need to make important decisions like education in consultation with one another.

What is parental responsibility?

Parental responsibility is as per section 3(1) of the Children Act 1989 (CA 1989) which confers all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property.

What happens if you cannot agree on home schooling?

If parents cannot agree arrangements for their child or children in respect of their education, they can apply to court for a Specific Issue Order, and the court can address the issue of whether or not a child should remain at their current school or move to the other preferred school (in this case home schooling).

The court application

In the above scenario, if the other parent is strongly opposed to the change of school or home schooling, then they could apply to the court for a Prohibited Steps Order, which is an order that limits when certain rights and duties which can be exercised, such as making decisions about their education.

The court will consider the parents’ opinions and the best interests of the children. The children’s educational development, efficient home schooling techniques and underlying health issues in the family are some of the matters that will be considered by the court when deciding the issue.

Before making an application to the court,  it is expected that parents should try and resolve matters as best they can. Parents might wish to engage in negotiation through solicitors, mediation or arbitration before either one makes an application to the court.

The child’s welfare is the court’s paramount consideration. If you are faced with a request from the other parent to consider moving your child’s school, it is best to take a pragmatic approach and decide as to whether you are simply opposed to the idea in general or whether you could perhaps identify some advantages to the move. With the court considering what is in the child’s best interest, is therefore important for you to do your own research and have the necessary information to inform your decision/position.

Given that children returning to school is imminent – some may have already started the new term – a parent may struggle to get an urgent court hearing, although it may be that the court fixes a date as soon as it can. In the interim, without an order or decision you will need to keep open communication with the other parent.

If you are unsure about what to do in relation to arrangements for your children, we would advise you to seek specialist independent legal advice from an experienced family lawyer. Please do get in touch today. We’re here to help you.

Separated parents and international travel during Covid restrictions

separated parents and travel during covid

Separated parents and international travel during Covid restrictions

From 17 May, the ‘Stay in the UK’ regulation ceased and international travel was allowed to restart, albeit governed by a new traffic light system.  Half term is coming up for many school children and of course some parents will want to take their children on holiday.  What must you consider? Associate Melissa Jones explains.

Firstly, if one parent wants to take a child abroad, whether permanently or temporarily, the other parent with parental responsibility needs to consent, and secondly, anyone with the benefit of a Child Arrangements Order (for the child to live with them) can remove the child from England and Wales for a period of less than one month without the consent of the other parent with parental responsibility.

What about Covid-19?

Because the situation is relatively fluid, it might be that the parent not going on holiday is nervous at the thought of the children travelling abroad, not least because of the fear that once in the destination country, your ex and your children might face a period of self-isolation upon their return. If you are the one wishing to travel bear in mind the so-called “traffic light system” may change and you could find yourself rushing to the borders to fly back to the UK at very little notice, in order to avoid going into quarantine. And there is the ever-present worry around the risk of the children either contracting the virus or transferring it.

Written consent

If you do wish to travel abroad, the first step is to get written consent from other parent before travelling but even if you do, they may change their mind. Try to have an open discussion with the other parent and understand and alleviate any fears they may have by confirming:

* travel dates and times

* where you will be staying

* how you will be keeping the children safe throughout the holiday

* you are both aware of, and agree to, the rules around quarantine and testing if you’ve been in an amber list country and you both understand the restrictions these rules impose

Compromise and flexibility are key.

What happens if we cannot agree?

You can make an application to the court for a Specific Issue Order and the court will decide the matter. If an agreement cannot be reached and one parent fears the other parent will travel regardless, they can apply to the court for a Prohibited Steps Order.

Will the court hear this matter in time?

The court is dealing with a significant amount of cases and there is no guarantee that it will be able to deal with an application such as this as quickly as might be necessary. Our advice is to deal with this matter before it becomes an urgent one. There are alternatives to making a court application, such as engaging your solicitor and seeing if the matter can be negotiated or referring to mediation to see if an agreement can be reached.

If you are affected by any of the issues outlined here, please get in touch today. We are here to help you.

Domestic abuse incidents may rise due to UK lockdown

domestic abuse

Domestic abuse incidents may rise due to UK lockdown

We are asking all people in the UK to be vigilant following reports of incidents of domestic abuse increasing in China after the lockdown imposed as part of the measures taken to prevent the spread of COVID-19.

McAlister Family Law has two specialist teams, covering public law and children law, and our solicitors are experts in cases of domestic abuse.

There has already been commentary – for example from Baroness Shackleton of Belgravia – that the (now government-imposed) confinement is likely to result in a rise in the divorce rate – we are also concerned for those who might be victims of domestic violence.

Amanda McAlister, our managing partner, said: “Self-isolation can be a dangerous time for women, and men, trapped inside with their abuser whose behaviour may be aggravated by the chaos and uncertainty around coronavirus.

“Every year after Christmas, we see a noticeable rise in enquiries about filing for divorce, usually brought about by the stresses of the holidays, couples forced to spend extended time together and more. Potentially, the current situation in the UK may have a worse outcome: the majority of children are now having to stay at home, parents have little or no childcare, there may be money issues, and the lockdown will inevitably lead to household tension among isolated families. Add into the mix more alcohol consumption in the home, and you have a very worrying situation.

“Unfortunately, for friends, neighbours and family, domestic abuse is not always easy to spot as it is often a hidden crime, and abusers frequently threaten victims to stop them from speaking out about domestic abuse.”

The Freephone National Domestic Abuse Helpline is still operating 24 hours a day, and confidential support is available if needed. If it isn’t safe to call, you can access the Helpline’s web form to request a safe time to be called back by a member. Anyone in danger can call 999 and ask for the police.  If it is not safe to speak, victims should make themselves heard by coughing, tapping the handset or once prompted by the automated system, by pressing 55. People put through to the Silent Solution system by the 999 operator will hear an automated message for 20 seconds which will ask the caller to press 55.

A police handler will then take over and attempt to communicate using simple yes or no answers.  However, this course of action only works on mobile phones – if a silent call is made from a landline then the operator can choose to connect a police call handler if they think necessary.

Anyone who requires help or support can contact the National Domestic Abuse Helpline which is open 24/7 365 days per year on 0808 2000 247 or via their website https://www.nationaldahelpline.org.uk

We would also ask anyone affected by any of the above issues and who is in need of legal advice to get in touch with us today, if they can, on 0161 507 7145, or you can email us if that is safer. We are here, 24/7, to help you.

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