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Clarke & Son Blog

Family in the time of Coronvirus – Part 2

On Sunday the 10th May, the Prime Minister, Boris Johnson, is expected to announce what are likely to be the first (and likely one of any number of progressive moves in the coming months), steps to easing the current lockdown restrictions. To recap, the UK was first placed in lockdown on Monday the 23rd March, with schools having closed the previous Friday.

The current Covid-19 crisis has had a previously unimaginable impact on our personal and professional lives. At the outset, The Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, issued Guidance on compliance with existing Child Arrangements Orders, and we were notified not long after that, that  almost a third of the Courts in England and Wales were to be suspended temporarily, whilst other Courts would continue to be staffed but only in order to deal with existing administrative tasks, whilst the remaining Courts would continue to function, albeit being closed to member of the general public. This has meant that a number of pre-existing Court cases were immediately adjourned until dates later in the year. Other Court cases were still to go ahead, but would be heard remotely, which could mean them being heard via Zoom, Skype, Microsoft Teams or more commonly, via telephone. This has not though resulted in business as usual for the Court that have remained open. Anecdotally, whereas Judges may have been able to deal with perhaps 10 physical Court hearings in a day, it soon became apparent, whether due to technical issues, or simply the need to factor in variables not present in a physical Court hearing, that this is just not possible. As such, Judges are conceivably (and understandably so) limiting the number of hearings they are now dealing with on any given day, and whilst the steer from the senior judiciary is that even hearings of a complex matter should still be dealt with remotely, that may be easier said than done, or alternatively, it has been felt that there is still a very real need for that level of physical, face to face interaction, in order to determine the outcome of a case without prejudicing either party.

On the ground, the above now means that many hoped for, but now adjourned, physical Court hearings are unlikely to take place prior to September / October, and that of course is entirely dependent on HM Government advice at the time allowing for them to go ahead.

This has not though prevented matters from being dealt with, and sometimes within very short and urgent timeframes. We issued an urgent application at Court early last week, on a Children Act matter, and the Court have been able to accommodate an urgent telephone hearing in a little over a week from the date of issuing the application. On another Children Act matter of ours, which was dealt with on a paperwork basis by the Courts, the Order now received explicitly states what impact Covid-19 will have had on matters, and how that should be viewed when we are next in Court later in the year.

Pre Covid-19, and subject to it not being deemed prejudicial to the parties, irrespective of the nature of the application before the Court, there was always the ability to vacate (have it removed from the Court diary) a hearing, by submitting agreed directions to the Court for the Judge to approve. This mechanism for continuing to progress Court cases, without delaying them (through no-ones fault) is perhaps being used more regularly now than before, and the added positive for the client is that such an approach means there is a saving on legal costs. To use financial cases as an example, there is often the need to instruct a single joint expert to provide a report on pensions or mortgage raising capacity. Even in these financially uncertain times, such reports are an invaluable tool that will enable the Courts and the parties to conclude cases. Timeframes for such reports being available, can be as little as a few weeks (mortgage raising capacity) to six months (on some pension reports, albeit sooner on others), and therefore the current Covid-19 crisis is not necessarily impacting on the usual procedural requirements that we need to see in place, and nor are the their timeframes necessarily out of the ordinary.

On other matters, we continue to issue new divorce petitions at Court, and there has been no change in how we approach that. Some of our clients are engaging in mediation, albeit remotely (& even then, the first contact with a mediator was by telephone), and applications for Child Arrangement Orders and Financial Remedy proceedings continue to be issued.

A number of our clients have accepted in principle that a property should be placed on the open market for sale, but only when the prevailing wind enables both parties to maximise the profit on any sale. Other clients are using this time to consider their view on a possible financial settlement, and negotiations, via email / letters, between solicitors continue in the usual manner and we continue to take on any number of new enquiries, speaking with our new clients over the telephone, both during and outside of normal office hours.

Even not engaging in crystal ball gazing, the lie of the land for us all on a personal level may be a little different in just under a week’s time, and in on a professional level, for us Family Lawyers, post September is likely to be an even more exceptionally busy time at Court, progressing cases to a conclusion.

Mark Chapman

Head of Family Law Department

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