With the world talking about a ‘new normal’ following the onset of a global pandemic, anyone thinking about separation or divorce will have to get to grips with what that means for their process. Though many people sort things out through discussion at home or mediation, many others – for instance where there has been domestic abuse, or your ex is being unrealistic about a fair outcome in relation to money/ secretive about what there is, or not being child- focused when talking about possible child arrangements – need the court’s help.
The provisions made in the family courts during Covid-19 could be with us for some time to come. Since full lockdown was announced, around 85%-90% of all court cases that have happened have taken place remotely. Many other hearings have been delayed (“adjourned”) as judges get to grips with things and having to move away from in person hearings, the norm in family cases. Understandably, though lawyers and judges have adapted to a new digital way of working, it is much more difficult for those going through divorce or separation (if they have lawyers or especially if they don’t) to understand and follow a hearing being done by telephone or video.
What do you need to know?
Bear in mind that the situation is changing all the time. Check the websites referenced at the end of this chapter for the most up-to-date information.
How to start a court process
Before Covid-19, there was already work being done to move much more court work online. It is already possible to start and progress a divorce process online. It is also now possible in most areas to apply for a child arrangements order or domestic abuse injunction online. The court will communicate with you (or your lawyer, if you have one) by email or phone to let you know what is being arranged.
When can I expect my court hearing(s) to take place?
First, you should be aware that the court may be working at reduced capacity. Your case will be “triaged” and a decision made about whether it is urgent. If you are the victim of domestic abuse and need the protection of orders, that will rightly be treated as urgent. Likewise, in relation to children, if there are child welfare issues and/or one parent isn’t letting the other parent see the children (without good reason), the court will want to arrange a hearing as soon as possible. If your ex isn’t providing “interim” financial support (i.e. whilst everything is sorted out), you may be entitled to an urgent hearing.
More routine children cases will be treated less urgently. You can still expect a hearing to be listed, but not prioritised.
What is a remote hearing?
The judge will decide if your hearing should happen by phone or video. It will be rare to have an in person hearing, though the judge may be able to decide to do that soon provided it is safe. It is important to tell the court about anything that might make a phone or video hearing difficult, such as a disability. If you are unwell, you can ask the court to delay the hearing.
How will it work?
If you are taking part in a phone or video hearing, you will need to work out the technology and that may be new to you. If joining by phone, make sure the court staff have the right phone number for you; they will be responsible for dialling everyone in (including the judge). If it is a video hearing (usually Skype but a judge may decide to use another medium like Zoom or Lifesize), you will need a phone or computer with internet access, a webcam and a microphone. The court has published a guide about remote hearings. However the hearing is taking place, an audio recording will be made.
Remote Hearings – Tips and Advice
The court will be keen to ensure that the seriousness of an in person hearing is maintained. Some people report that having their hearing done remotely is actually much less stressful than travelling to an imposing court building; others find it hard to follow what is going on when a hearing is by phone or video.
Some tips – Do:
- Sit in a quiet place, where you won’t be interrupted and where no-one is listening (hearings are private and the judge will want to know that no- one other than those involved are on the call);
- With a video hearing, ensure your face is well lit and that the background is suitable for broadcast;
- Use earphones – they may help you hear more clearly and protect the confidentiality of your case;
- Have a notebook alongside you to make notes;
- Use the mute button, other than when you are invited to speak;
- If you have a lawyer, set up a separate messaging system (on e.g. WhatsApp) to have a clear line of communication, ask questions and give your instructions as the hearing takes place.
- Move away from the screen/ call unless the judge decides to have a break in the hearing. You should think of asking for a break if you are struggling to follow;
- Interrupt proceedings if not called on to talk – although do speak up if you are having technical difficulties or are otherwise unable to hear;
- Record the hearing – it is a criminal offence.
Is this the future?
We all hope that the pandemic will be under control soon and that life can begin to go back to normal. Few people think that remote hearings are ideal in family cases, where outcomes are based on a judge helping a couple sort things out or making decisions having heard from them and decided whose case (or which parts of each) they prefer. However, the courts have been undergoing a modernisation and reform programme in recent years and in the future some family cases (probably the shorter initial “directions” hearings, at which it is decided what information is needed for a case to be sorted out) may well be heard online. With more and more courts being closed around the country and people having further to travel to get to their nearest court, in some cases this makes sense. In deciding which cases may be heard remotely in the future, it will be very important to learn from the experience of lay members of the public (represented and especially unrepresented) during the pandemic and make sure that those voices shape future change.