E-filing and paperless hearings

New changes to the Family Procedure Rules are coming into force on 1 April 2020.  A key change codified within the new rules is part 41: the electronic filing of documents. Part 41 provides that documents including but not limited to, applications, notices, statements and letters, can be now be filed electronically instead of by paper.

Given the recent extraordinary circumstances, such change could not have come at more relevant time. Due to the restrictions imposed by the government, it is now necessary for documents to be filed electronically as more and more of the legal profession are now working from home. Courts during this period are already accepting bundles being filed electronically, alongside divorce applications and other applications within proceedings also. Whilst in some areas of family law, e-filing is more common practice, this has not been uniformly the case.Part 41 will facilitate paperless working for the courts and judiciary. Most solicitors and barristers now operate a paper-light or paperless policy and therefore such transition is warmly welcomed. It is hoped that by allowed for e-filing, less paper can be used and filing of documents can be more efficient, particularly in the context of copying in the other parties in case instead multiple emails.   

Notwithstanding this, e-filing is giving rise to complications for those who do not have access to software which can compile e-bundles. Barristers’ chambers when instructed can assist.  There are also additional complications in obtaining signed versions of documents when filing with the court. More consideration may need to be given in these current circumstances for filing of documents without signatures and which documents are required to be “wet signed”.   The situation is further complicated when there are litigants in person involved in the case who may not have software to read e-bundles, and almost impossible when there are no solicitors instructed in the case.   

Remote hearings

The President of the Family Division has released guidance on remote hearings under the aim of ‘Keep Business Going Safely’ and to ensure the court system continues to operate for those who turn to court for protection and justice. The confirmed position for the Family Courts is that hearings should, by default, be undertaken remotely either via email, telephone, video or Skype if practicable, using FPR r1.4(e), 4.1(3)(e) and PD12A in the contact of public law hearings as the base for this position. The President explains that Skype for Business may be the most suitable form to conduct a hearing which may require numerous parties to give evidence or submissions.

The President does point out that the determination of whether a hearing should go ahead remotely will be made on other specific case factors. The following are suitable to be conducted remotely:

1. All directions and case management hearings;
2. Some Public Law Children hearings  (Emergency Protection Orders, Interim Care Orders and Issue Resolution Hearings);
3. Some Private Law Children hearings (First Hearing Dispute Resolution Appointments, Dispute Resolution Appointments, other interim hearings and simple short contested cases);
4. Injunction applications where there is no evidence that is to be heard (or only limited evidence);
5. Financial Cases;
6. Appeals;
7. Other hearings as directed by the judge concerned.

In the event that a hearing cannot go ahead remotely, then it should be adjourned and re-listed on an urgent basis for directions to decide how best to navigate a future hearing minimising the need for face to face contact.

The onus is on the applicant within the case (or next legally represented party if the applicant is not represented) to make the arrangements for the remote hearing. In the case where neither of the parties are represented, the court has agreed to make the arrangements for the remote hearing.

It is not refuted that there are some hearings that cannot be done remotely, such as those which require large amounts of evidence to be given, however where possible, this should be an exception and not the norm until the pandemic lockdown restrictions are able to be relaxed.  

Recordings and transcripts

Another key change noted in the Family Procedure Rules is the tape or digital recording by the courts under rule 27.9. The previous rule archaically required the court to make “a shorthand note of the hearing” which had to be read as including “a recording by mechanical means”.  This has now been amended to be clear that the court will now record all hearings, and that any party can require a copy of the transcript unless the court has prohibited this.   Rule 27.9 also now provides for non-parties (such as journalists) to request a copy of a transcript, with permission from the court.   A fee must be paid for the transcript regardless.

The majority of hearings will now be conducted via telephone given the President’s Guidance on Remote Hearings and therefore it is of utmost importance that such hearings are still recorded as per rule 27.9 to ensure transparency of the court is continued to be upheld.       Most audio recording facilities do have the option to record hearings, such as Zoom or BT Call me, however the option must be selected prior to the call going ahead. In some instances, the court has recorded the call itself through the audio recording equipment in the court. However as the judiciary are increasingly themselves sitting at their homes remotely rather than in a court building, this may become less likely as an option that can be pursued. Recording remote court hearings ensures that the courts can still function and be compliant with rule 27.9 in the same instance. 

Family justice during the pandemic and in the future

It is of vital importance that hearings can still go ahead as far as practicable to ensure that children continue to be safeguarded and protected and that the needs of parents and separating couples are met. This is particularly relevant within care proceedings, wardship and abduction proceedings which concern the urgent safety of a child and ensuring their interests are protected and voices heard.   The family courts and family law professionals, including all of our team at Bindmans have so far risen to the challenges admirably.

Whilst Covid-19 has presented with significant challenge to way we function within our day to day lives, and has been a ‘baptism of fire’ to advance technological ways of working, it has also helped put in place key changes to the way cases are ran. By encouraging e-filing where possible, it takes step to remove unnecessary paper usage and allows for almost instantaneous filing of documents to the court and parties in one motion.  Remote hearings allow the courts to carry on their essential function both within family proceedings and the wider public arena. In addition, they facilitate parents who do not live in the jurisdiction to easily participating in hearings occurring in the UK regarding their children.  It is hoped that such use of technology can continue to be an avenue to ensure the court system is ran as efficiently as possible both now and for the foreseeable future.  

This blog was written by Annie Leach, Paralegal – Family and Matrimonial Law

The Bindmans family law team have now set up and participated in several remote hearings and are fully set up for remote working.   If you have any family law concerns during the coronavirus lockdown and beyond, you can contact the team on family@bindmans.com or +44 (0) 20 7833 4433.