SPECIFIC GUIDANCE FOR FAMILY COURTS IN DORSET
HHJ Dancey, the Designated Family Judge for Dorset, has sent out a Local Practice Guidance on COVID-19. I am grateful to barrister Amanda Bancroft for sending it to me. It provides a template for working and supplements the President’s national Guidelines.
“LOCAL PRACTICE GUIDANCE FOR FAMILY PROCEEDINGS: COVID 19 – (1) 20 MARCH 2020
- I am issuing this local practice guidance supplementary to the President’s National Guidance for the Family Court issued yesterday. This local guidance has immediate effect until further notice.
- It is likely this guidance will need to be updated on a regular basis as circumstances and national guidance change. I would welcome any suggestions as to how we manage family proceedings and hearings during these uncertain times. I am grateful to those who have already contributed to this guidance through (Skype) meetings and emails.
- The overriding concern will be to safeguard the health of all involved in family justice. Subject to that the purpose of this guidance is to further the aim of keeping family justice running in Dorset as efficiently as we can.
- Priority will be given to urgent cases, in particular to the following:
- Non-molestation injunctions
- Removal/abduction cases
- Private law cases where contact has been stopped completely
- Emergency protection orders
- Removal under interim care orders
1.5 Because priority must be given to urgent and time critical cases, parties should expect that non-urgent cases may have to be adjourned. It is incumbent on all parties to try to resolve cases or issues without the need for a hearing whenever possible. Parties may be asked to explain what steps they have taken to try to resolve their case.
1.6 In the short term busy lists may be ‘stripped out’ of non-urgent hearings and parties told that their cases will be re-listed as remote hearings as soon as that can be organised.
2.1 In accordance with paragraph 4 of the PFD’s Guidance, the default position is that all family court hearings will be carried out remotely with immediate effect.
2.2 The preferred method of remote hearing is by Skype. HMCTS guidance about how to use Skype will be circulated with this guidance. You are encouraged to follow the links to the HMCTS update on the use of video and telephone hearings and to the You Tube training videos links at paragraph 14 of the PFD’s Guidance.
2.3 Where one or more of the parties is represented, responsibility for arranging the Skype hearing is on the applicant or the first represented party. This shall be done by setting up an Outlook Skype invitation to all parties, advocates and professionals who need to attend the hearing, and the judge or legal adviser.
2.4 If no party is legally represented, the court office will contact the parties to explain that the hearing will be held remotely, sending them instructions for downloading the free Skype for Business App and asking them to confirm no later than 5 days before the hearing (or, in urgent cases, no later than 24 hours before the hearing):
- that they have downloaded the Skype for Business App
- their email address
- their ability to attend the hearing by Skype.
2.5 If a party is unable to attend by Skype for Business but could attend by telephone, the hearing will be held by telephone conference call, to be arranged by the applicant (or first represented party) or by the court where no party is represented. It is recognised that downloading Skype for Business may present an obstacle and the court will be prepared to use the alternative of telephone when necessary.
2.6 The person responsible for arranging the telephone hearing must obtain and provide to the court the telephone numbers of all participants at least 24 hours before the hearing.
2.7 The court (the judge, legal adviser or clerk) will dial the numbers provided using BT MeetMe to join participants to the hearing. At present the court has 4 BT MeetMe lines available, two of which are dedicated to HHJ Dancey and HHJ Simmonds. The court is working to increase this capacity.
2.8 Remote hearings will be fixed at specified times with time estimates that will be critical and which must be met. The Court will leave sufficient time between hearings to allow for orders to be drawn and preparation for the next hearing.
2.9 Just as I go to press, I hear from Dorset Council that they are arranging remote facilities at Weymouth and Ferndown, and possibly other venues, where parents can go and use Skype to attend hearings remotely. Initiatives like this demonstrate how we can adapt to meet challenging circumstances.
Preparation for remote hearings
3.1 Holding a hearing remotely makes it even more essential that proper preparation and planning happens in good time for the hearing. In particular
- instructions should be taken from clients at soon as practicable to enable proper preparation – it needs to be stressed to clients that we are all working in difficult circumstances and they have to co-operate
- parties will be expected to focus on the issues that need to be dealt with at that hearing, to try and agree and narrow the issues whenever possible and to identify clearly for the judge in advance the issues that remain to be considered/decided
- documents will need to be exchanged in good time
- the electronic bundle, complying with paragraph 18 of the PFD’s Guidance, will need to be prepared with care by somebody with adequate knowledge of the case and contain only the documents necessary to deal with the issues at that hearing
- dial in details for all parties must be provided in good time, and in any event not later than 24 hours, before the hearing to the party responsible for making the remote arrangements.
3.2 Special care will need to be taken to ensure that, when directed, advocates’ meetings are effective. They should continue to be arranged by the child’s solicitor. It will be especially important that advocates attending remote hearings also attend the advocates’ meeting preceding the hearing, with full instructions from their clients. If for any reason an advocates’ meeting cannot be held, position statements should be exchanged by no later than 12 noon on the working day before the hearing.
3.3 In order to make sure that remote hearings run as smoothly as possible
- anybody attending the hearing should ensure they have good connection/signal to avoid breakdown in connection during hearings
- the party responsible for arranging the hearing must liaise with the court in advance to deal with any technical issues
- that they join the hearing in good time to iron out any technical difficulties.
4.1 The Court will act as recording manager for any Skype calls and will upload recordings to the Cloud.
4.2 BT MeetMe calls are recorded and a transcript can be obtained on request.
4.3 This will also enable hearings to be conducted remotely from the Court in the event that court buildings cannot be accessed.
5.1 Judges will continue to attend court to conduct hearings subject to any guidance that may be issued including guidance about any need to self-isolate.
5.2 The PFD’s Guidance envisages the possibility of attended hearings where they are necessary and are not appropriate to be conducted remotely.
5.3 In respect of any hearing that cannot be conducted remotely the parties must liaise as soon as practicable. If all parties agree that the hearing should be adjourned a draft consent order with directions should be submitted to the case managing judge as soon as possible. In the event that all parties agree there should be an attended hearing, or there is disagreement, the parties should ask for an urgent directions hearing before the case management judge or legal adviser which will be conducted remotely. Attended hearings will only be authorised where the court is satisfied it is safe to do so.
5.4 In order to reduce the number of attended hearings parties should actively consider:
- whether the issues in the case can be agreed or compromised, in full or in part
- whether the case is sufficiently urgent to require an attended hearing or whether it can safely wait until the current crisis has resolved
- what measures would be needed to ensure an attended hearing can be conducted safely and within any current guidance.
5.5 In order to reduce numbers of people in the court building, parties and legal representatives should routinely attend 30 minutes before any attended hearing (not one hour as currently directed) unless legal representatives consider they need a full hour for pre-hearing discussions (in which case they should attend one hour before).
5.6 Parties and legal representatives should leave the court building as soon as practicable after the hearing has concluded.
5.7 If an attended hearing is required the court may consider sitting in another court building in order to reduce footfall at a busy court.
6.1 We might expect that the increase in families being isolated together will increase the potential for conflict and domestic abuse. It is essential that the Court is able to meet the needs of those needing protection while affording respondents a sufficient opportunity to challenge orders made without notice.
6.2 Without notice non-molestation injunction applications will be heard by Skype or by telephone. The Court office will ascertain from an applicant whether they have downloaded the Skype for Business App to enable a Skype hearing. If not, the judge will telephone the applicant.
6.3 The judge will not expect to take evidence at the remote hearing. It is important therefore that the applicant has set out everything that is required in a written statement so that the Court can consider whether the case is appropriate to be considered without notice to the other party and requires protection through a non-molestation and/or occupation order.
6.4 At the conclusion of the hearing the Court will draw any orders and will send them to Dorset Police at email@example.com . Ordinarily the Court will make such orders to last for 6 or 12 months subject to the right of the respondent to ask the Court to reconsider the order.
6.5 Orders may be served by the following methods:
- by email, text or other electronic means if the court is satisfied this will bring the order to the attention of the respondent. This will require the applicant to provide the court with reliable email addresses or telephone numbers for the respondent
- by process server instructed by the applicant
- by the court bailiffs or by the police personally
6.6 The Court will list a return date within 14 days when the respondent only need attend by telephone or by Skype. If a respondent proposes attending the hearing to oppose they must:
- notify the Court Office by email to firstname.lastname@example.org no later than 2 working days before the return hearing they will attend the return hearing
- confirm that they will be available at the time of the hearing to attend by Skype or Business (in which case providing an email address) or by telephone (in which case providing a telephone number)
- be available to attend at the time fixed for the hearing.
6.7 If the respondent fails to notify the court or, having done so, fails to make themselves available at the time of the hearing, the Court will continue the injunction orders.
6.8 If the respondent attends the hearing and wish to challenge any orders made without notice the court will fix a further remote hearing for both parties to attend by Skype or by telephone when further directions will be given.
7.1 For the time being all gatekeeping will be done, remotely if necessary, by full-time circuit or district judges who will allocate and prioritise having regard to urgency.
7.2 If there does not appear to be a safeguarding issue and the case is not urgent, the Court may consider staying or adjourning for the parties to consider non-court dispute resolution including MIAMS or mediation. Before doing that the court will consider:
- whether safeguarding should be awaited
- whether NCDR facilities remain available and accessible (see the section MIAMs/Mediation below)
- giving either party the opportunity to raise any safeguarding issue that means that NCDR would not be appropriate.
Public law cases
8.1 The closure of schools save for the children of key workers is likely to increase the safeguarding burden on social workers. We can expect that the priority on social work teams will be on safeguarding rather than assessment.
8.2 It is to be expected therefore that assessments inhouse may not be possible as they have been hitherto. The parties should consider whether it is necessary to outsource assessments for example to independent social workers. Alternatively it has been suggested that assessments could be carried out by Skype or some other remote means to avoid direct contact. The Court will need to consider whether this is appropriate on a case by case basis.
8.3 Parties should also consider whether it is necessary for the allocated social worker to attend any hearing, remote or otherwise. The default position will be that such attendance will not be required unless requested by one of the parties, who should expect to be able to justify such request to the court. This means that advocates appearing on behalf of local authorities must be fully briefed. The allocated social worker should be available by telephone/email at the time of the hearing to give any necessary instructions. Careful consideration should be given before requesting the attendance of a social worker to give evidence. The questions should be whether that evidence is (a) likely to be challenged and (b) whether it is necessary to deal with the issues at that hearing
8.4 Where the challenge at an interim stage is to the interim care plan rather than threshold, the court will expect to deal with the hearing by way of submissions rather than evidence.
9.1 FHDRAs will be conducted by remote hearing in accordance with the provisions set out earlier in this guidance.
9.2 For the time being the Court will distribute FHDRA lists during the week rather than focusing them in one day (save for legal adviser lists which will remain listed for remote hearings on one day). It is hoped this will facilitate the time needed for remote hearings.
9.3 On issue of the application the Court will tell the parties that Cafcass may make contact with them via their preferred method of contact (telephone/Skype/WhatsApp/Facetime) to clarify information if required shortly before the hearing.
10.1 Most Cafcass safeguarding is currently undertaken remotely in any event and, for the time being, we can expect that safeguarding reports will continue to be available.
10.2 Cafcass indicate as follows:
“We will be completing reports as usual but by using remote working tools and techniques. Interviews with children and young people will be via Skype (and Cafcass have facility for service users to share their desktop screens and complete direct work tools directly onto the computer) or by Facetime/WhatsApp calling – whatever the service user feels most comfortable with. Parental consent will be gained before any remote interviews take place. We will not be able to undertake direct work with those children who are very young, but this would be the case without the complication of remote working. The court will need to consider whether the environment in which the remote direct work was undertaken will have had any bearing on the child’s expressed views and wishes and the Cafcass officer will advise the court about this.”
Vulnerable parties and witnesses
11.1 Particular care should be taken to ensure the full participation of vulnerable parties and witnesses and the need to obtain best evidence. Remote hearings may present difficulties for those who are vulnerable and the court and professionals need to be sensitive to any additional needs.
11.2 Annexed to this guidance is an information sheet from Communicourt which has been circulated by the PFD as a useful document.
11.3 Support Through Court (formerly PSU) is not currently available. A plan by CAB to continue the Service has been put on hold during the current health crisis. Anybody requiring support by phone can call the STC national helpline 03000 810 006.
12.1 FMC guidelines permit mediation intakes, MIAMs and mediation to take place by Skype or other similar videocall and can still be offered. Recent guidance has been issued by FMC about the circumstances in which voice only mediation intakes can be carried out:
12.2 While intake and MIAM meetings can be carried out remotely, mediation itself may have to await the ability for parties and mediators to meet if they do not want to have meetings by Skype etc. In urgent cases video mediation is possible and has been provided for within existing rules.
13.1 It is essential that everybody who comes to the court building follows any current guidance about safety and looks after themselves and others.
13.2 In particular direct contact should be avoided and the 2m rule observed at all times. Wash hands regularly as recommended. Bring your own sanitising gel/wipes to court as the court is unable to provide this for everybody.
13.3 While the court counter will remain open, anybody attending or phoning for an appointment will be asked whether they could deal with their query or application online and will be encouraged to do so. In that event the court will signpost to any available online facilities and guidance.
13.4 The Court Office will minimise the need to handle court files by dealing with matters electronically. To assist please observe the following:
- All electronic communications should be sent to email@example.com and, if the communication relates to a hearing, direct to the judge conducting the hearing. When sending out notice of the hearing the court will tell parties which judge is listed to deal with the hearing (appreciating that may change of course) and the judge’s email address.
- Do not send hard copies of any documents to the court. All documents should be filed electronically pending further guidance.
- Observe strictly current guidance about subject matters in emails. This means stating in the subject the case name and number, any hearing date and the name of the judge conducting it and, if the matter is genuinely urgent, saying so and explaining the urgency at the start of the email – eg “BCP v Smith BH20C00123 Hearing 20.3.20 HHJ Dancey URGENT”
- Similarly, all documents must be clearly entitled with the date (year first) and identifying what the document is eg “2020 03 20 Mother’s 3rd witness statement”.
- Do not telephone or email the court unless you need to. We can expect that some staff and judges will have to self-isolate. Think before you phone or email – is this absolutely necessary?
Finally – I thank everybody for their continued co-operation and commitment to serving families in Dorset who need our help.
HHJ Martin Dancey
Designated Family Judge for Dorset
20 March 2020
Communicourt intermediaries are set up to work remotely.
All Communicourt intermediaries already have access to:
- Company laptops
- Managed IT support (remote)
- Company mobile phones
- Skype supervision
- Secure virtual servers
Technologically, we are therefore in the position to support the courts’ remote hearings.
Communicourt practitioners are currently receiving training on how to provide intermediary support remotely. This is something we have done before through conference calling and supporting vulnerable people from different geographies.
Things to bear in mind when intermediaries are working remotely:
- Vulnerable people with communication difficulties will still need regular recovery breaks as well as explanation breaks
- Explanation breaks may need to be extended to allow opportunity for the intermediary to explain to the vulnerable person concepts that they may otherwise have explained in real time.
- These explanation breaks can take place remotely in the absence of other court staff. Only the intermediary, the vulnerable person, and their legal representative need to be present in the virtual conference room
- A short ground rules hearing at the start of all remote hearings will be all the more important, to iron out any potential practical arrangements and any barriers to justice
- The intermediary may need time before a hearing to meet, virtually, the vulnerable person to gain rapport and also to assess and flag up if there are any additional or different recommendations. These may be different from or in addition to the recommendations in the report, where recommendations will have been made for a face to face court setting
- The intermediary should have opportunity to virtually ‘pass a note’ to the judge as a result of any virtual conference if there are any concerns or problems. This could be done via email.
Where a case is urgent, and there is a need for pressing issues to be determined, and it is not possible to conduct a remote hearing then intermediaries would be available to attend physical hearings whilst maintaining a social distance as to minimise the opportunity for infection. It may be the case that in these hearings, the intermediary and the vulnerable person attends court, but that other parties attend remotely.
We are currently consulting staff on their remote working capabilities (access to office space/confidential room, access to Wi-Fi etc) so we can ensure that intermediaries remotely accessing hearings can do so safely and effectively.