Financial Remedies and Covid-19 – the Brave New World of Remote Hearings

Harold Wilson supposedly said that a week is a long time in politics, well it seems an even longer time in Family Law lately. Traditional ways of conducting litigation that have been taken for granted for decades (if not centuries) are now as rare as the proverbial white leopard, while new-fangled ideas of remote working and alternative dispute resolution (ADR) that some of us have been pushing for years have become the default overnight. It seems every day brings another guidance document. The challenge for family lawyers is not whether to move with this trend but how, and how quickly we can do it.

The brave new world

The sea-change in our method of working is exemplified by the latest guidance from HHJ O’Dwyer for the Financial Remedies Court at the Central Family Court in London. This guidance includes provision that, at least for the period from 6 April to 1 May 2020 (and probably longer):

• Only the most urgent cases will be listed for an attended hearing.
• “Urgent” means applications for interim maintenance, legal services payment orders, freezing/set-aside orders under s. 37 Matrimonial Causes Act and enforcement orders.
• Even those types of cases will be triaged – they will require an explanation by email 7 days in advance or on the date of issue of why they are urgent before any attended hearing will take place, whether remote or otherwise.
• Wherever possible First Directions Appointments should be conducted by agreement, and in default of agreement as a paper hearing on written submissions.
• Pre-Trial Reviews and Final Hearings already listed are to be reduced to 1.5-hour directions hearings, to consider whether a contested hearing is necessary and if so the measures to be put in place to enable such a hearing to take place;
• All other hearings, including any contested hearings not considered sufficiently urgent will be adjourned and where appropriate referred to ADR.
• The parties are under a duty to consider ADR.
• The parties are also required to consider whether any dispute between them can be dealt with at a paper hearing on written submissions.
• Where a remote hearing is necessary the parties will have to show that they have taken all reasonable steps to pursue ADR and that a paper hearing is not appropriate. Such remote hearings will be by telephone unless the court directs otherwise.
• Electronic bundles are essential, and must be searchable, electronically paginated and compliant with PD 27A.

Under this guidance, at least in the short term, most matrimonial finance disputes will be forced to move from the court arena to a form of resolution – ADR – which is unfamiliar to many practitioners and clients in this field. Similar guidance is likely to follow in other courts. The cultural and practical obstacles may seem daunting, but the reality is that the groundwork has been there for a very long time.

ADR and remote working in family law

Judge O’Dwyer’s guidance references procedural rules that have been in place for many years. Rule 1.4 of the FPR 2010imposes a duty on the court to encourage the use of non-court dispute resolution. Rule 3.3(1) requires the court to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate. Where appropriate the court may direct that the proceedings be adjourned for such period as is considered appropriate to facilitate ADR. This has been in force in its current form since April 2014. It echoes similar provisions in the Civil Procedure Rules which have been in place for far longer. They provide for more than simply ticking the MIAM exemption box and moving on.

Rule 2.8 provides that the Court may deal with a case at any place that it considers appropriate. The overriding objective requires that cases are dealt with expeditiously and fairly and in proportion to the nature of the issues, with an eye to saving expense. Traveling many hours to a far-flung court to deal with a matter that could be dealt with by telephone would not seem to fit with this.

Best Practice Guidance on the conduct of FDRs issued as long ago as 2012 referred to private FDRs and there are reported cases where such private hearings have taken place going back at least as far as 2014. It should not be a new idea for most practitioners. The guidance was foreshadowed by Thorpe LJ’s reference to ‘private judging’ in Lykiardopulo v Lykiardopulo [2011] 1 FLR 1427.

In 2012 arbitration has been available for financial disputes on divorce and relationship breakdown, and since 2016 for private family law disputes.

In October 2014 in the case of JL v SL (No 1)(Appeal: Non-Matrimonial Property) [2015] 2 FLR 1193 Mostyn J urged parties who were arguing at great expense over the treatment of a relatively modest inheritance urged the parties to consider a private FDR or mediation rather than delay for a further final hearing. It is not recorded whether they took the Judge’s suggestion up, but the case was not resolved until at least two further hearings and a further 5 months had elapsed. The costs of such an exercise were likely very high.

In the same year Eleanor King J refused a wife’s application for a Legal Services Order on the basis of her attitude to ADR (see H v W (Cap on Wife’s Share of Bonus Payments) (No 2) [2015] 2 FLR 161).

In 2015 Cobb J in a speech to the Resolution DR conference asked whether “the time [has] come to amend the FPR to bring them in line with the CPR? Would you want judges to have the power (absent agreement) to stay a case to allow for settlement, or is agreement essential?”. The judge noted the element of coercion in bringing the parties together for an FDR as a mandatory attempt at settlement.

Rising to the challenge

In other jurisdictions (within and outside the UK) such ADR is commonplace. I can remember attending an arbitration in a wrongful death suit in California as long ago as 1997. If it was possible in the days before skype, zoom and Covid-19 to resolve such issues as compensation for the death of a loved-one out of court, then it is possible to resolve the division of matrimonial assets now with the benefit of such technology.

In civil proceedings there are costs implications for not undertaking ADR an Ungley Order is available, requiring the parties to consider ADR and for any dissenting party to file a statement setting out the reasons why it is not appropriate. In the First Tier Tribunals it has been common for years for the Child Maintenance Service to be represented by video-link, while many social security appeals are resolved by taking evidence by telephone.

As for remote working, I have been fortunate enough to spend half of my career practicing from London and half from the rather more pleasant surrounds of Devon. Nobody who has undertaken the slog to Mansfield or Lincoln County Court by public transport or been listed in Swindon at 10:00 and Gloucester at 14:00 for a largely uncontested directions hearing can have escaped the thought that there must be a better way. That is because there is.

I have represented clients based in the UAE, Peru, Australia and New Zealand and attended them by video conference or telephone. I have had evidence in court from parties abroad by video-link. Since moving to Devon, I have been able to undertake work for clients based in other parts of the country, again using technology to do so. As I write this my colleagues in chambers are attending disputed hearings with evidence via Microsoft Teams.

Once the natural fear of change is overcome it is not only possible, it is preferable to lengthy travel for relatively straightforward matters.

Many barristers’ chambers, including my own Magdalen Chambers in Exeter, have the facility for videoconferencing, arbitration and mediation, private FDRs and early neutral evaluation. We now have all our chambers meetings by videoconference and will be holding our first chambers online quiz night this week. My own experience of ADR and round table meetings is that, where the parties and practitioners engage in the process openly it is at least as likely to lead to a resolution as a formal FDR.

As family practitioners we will all be able to rise to this challenge if we embrace the technology and the new way of working. For some it will seem too daunting. No doubt the same was said by some when FDRs were introduced. I know many said the same when Direct Access was brought in. It is the new reality, however, and one which family lawyers are more than able to adapt to.

Eviction, Unlawful Eviction & Covid-19

Recent media reports and social media excerpts suggest there has been an increase in attempts by landlords during the current Covid-19 (Coronavirus) crisis to evict their tenants including one national report of a landlord attempting to evict a paramedic by text. This article answers in brief some of the questions that tenants and landlords may have in an already worrying time.

What process should a landlord follow if they wish to evict lawfully?

Most tenants with a private landlord have an assured shorthold tenancy (there are exceptions, for example, if the landlord lives in the same property with the tenant). If a tenant has such a tenancy, the landlord can usually only evict the tenant lawfully if it serves a notice under either section 21 of the Housing Act 1988 (a no fault eviction process) or section 8 of the Housing Act 1988 (where the landlord says the tenant is at fault such as because of rent arrears) and obtains a court order and gets the bailiff to enforce any possession order.

Are there any measures currently in place to prevent a landlord evicting during the Covid-19 (Coronavirus) crisis?

The government and judiciary have taken steps to prevent a landlord from evicting a tenant during the current pandemic.

The government has changed the law so that the notice that a landlord needs to serve on the tenant as a prerequisite to any possession claim (regardless of type of tenancy) is now 3 months (section 81 and schedule 29 of the Coronavirus Act 2020). This change in the law, at the time of writing, will continue until 30 September 2020.

The judiciary has introduced a new Practice Direction to the Civil Procedure Rules (Practice Direction 51Z) to stay (put on hold) all possession proceedings and action to enforce any possession order for 90 days from 27 March 2020.

What can a tenant do if a landlord seeks to unlawfully evict?

Unlawful eviction is a criminal offence so a tenant can contact the police for assistance. If it is suggested that this is a civil matter only, the tenant should refer the police to section 1 of the Protection from Eviction Act 1977.

Unlawful eviction also gives rise to a civil cause of action. A tenant who is unlawfully evicted can seek an injunction from the court ordering the landlord to reinstate the tenant to the property and can claim damages (compensation) for the unlawful eviction. A solicitor, Shelter or a Law Centre will be able to assist with such a claim and legal aid is available if the tenant qualifies in terms of means (income).

What are the consequences for a landlord who unlawfully evicts?

A landlord who unlawfully evicts his or her tenant is guilty of a criminal offence unless he or she proves that he or she had reasonable cause to believe that the tenant had ceased to occupy the premises. This offence is punishable by a sentence of up to 2 years in prison.

A landlord who unlawfully evicts could also face proceedings in the civil court. The first and most immediate remedy that will be sought by the tenant is an urgent injunction to reinstate the tenant and notwithstanding the Coronavirus crisis the courts are likely to deal with such injunction applications urgently. In addition, a tenant can make a claim for damages (compensation). A recent Court of Appeal decision acknowledged that awards for damages for unlawful eviction are generally between £100 and £300 per day. This author suggests that in the current climate awards are likely to be towards the upper end of that range. In addition, an unlawfully evicted tenant can seek exemplary and aggravated damages, which altogether can be in the thousands of pounds.

What can a landlord do about a tenant who is acting in an anti-social manner or committing a nuisance in these unprecedented times?

Injunctions remain available and are not subject to the stay that has been imposed on possession proceedings. Social Landlords and Local Authorities can seek an injunction under the Anti-Social Behaviour Crime and Policing Act 2014. A private landlord can seek an injunction to enforce the terms of the tenancy agreement so, as long as the landlord has a good and comprehensive tenancy agreement, he or she can take action in the event of a breach to enforce the terms.

Does Coronavirus affect the tenant’s obligation to pay rent?

Coronavirus is likely to have a significant impact on the incomes of both landlords and tenants, but the contractual obligation on the tenant to pay the rent remains the same. Those landlords and tenants that are struggling financially should communicate with one another (by phone, email or letter in the current climate of restrictions) as this is far more likely to promote understanding and a good landlord and tenant relationship.

For landlords, during this uncertain period the government has stated that it “will ensure that support is available where it is needed for landlords” and there is a 3 month mortgage payment holiday available where landlords have a buy to let mortgage.

For tenants, the government has introduced various support measures depending on whether you are employed or self-employed and more information on these can be found on the government website or through citizens advice.

Magdalen Chambers has specialist Housing and Property Litigation Teams that remain fully functional during these difficult times and are able to advise tenants and landlords alike on any issues they are facing. In the event that you need assistance in any such matters we can be contacted on our usual telephone number 01392 285200

It’s business – but not as usual.

Since the situation became increasingly troubling our team have worked hard to be in a position to assist our professional and lay clients, the Courts, and the Ministry of Justice to keep the system running in these unprecedented circumstances.

All of our members are trained on using the main cloud-based video platforms considered by Macdonald J in his recent guidance (Sykpe for Business, Zoom and Microsoft Teams), and we have been conducting remote hearings from home since Friday 20 March 2020. Members are able to accept instructions and papers electronically. Our clerking team will be happy to help you with any advice about the best ways to send bulky documents.

Our clerking team are also fully set up to work remotely, and our phone lines and diary systems mean that you will continue to experience the same high standard you have come to expect from Magdalen Chambers.

The situation is still evolving on an almost daily basis, but Magdalen Chambers is at the forefront of the efforts to keep the justice system running. Our Heads of Chambers and Teams are in contact regularly with the Senior Judiciary to ensure that we are able to provide the best assistance possible, within the guidelines. To that end we can provide:

  • A fully set up, dedicated video suite which is sufficiently spacious for Counsel and client to be the recommended distance apart if it is necessary and safe for them to be in the same room providing the security and confidentiality required by the Court in sensitive Children Act proceedings;
  • Smaller conference rooms in which a representative can sit alone in order to participate remotely in proceedings without the need to sit in the same room as a client, minimising risk to each individual;
  • This also provides the facility for clients who require the assistance and support of an intermediary or interpreter, allowing them to be in the same building, accessing the same video platform, but not the same room;
  • A fully trained team to conduct Private FDRs, including retired District Judges Arnold and Waterworth and Retired Circuit Judge HHJ Tyzack QC, alongside our wealth of fee paid judges in Chambers (Deputy District Judges and Recorders) as well as our well-respected team of finance practitioners. The Courts have been clear that FR cases are likely to be significantly delayed whilst priority is given to Children Act cases: Our clients do not need to wait for the Court to catch up with the inevitable and significant delays which will follow this crisis;
  • Our Direct Access barristers and clerking team remain fully set up and able to offer advice to clients in all disciplines. If you are struggling with the particular difficulties of cohabiting under the current Public Health guidelines and fear that you are unable to seek advice about a difficult situation then please contact us. We have experience of working remotely and discretely to ensure that you can still access advice and support.
  • We can also ensure that urgent applications designed to provide safeguarding for yourself and vulnerable dependents are made properly and promptly.

To talk to us please call – 01392 285 200

To email us please use – clerks@magdalenchambers.co.uk

Our hours are 8.30-6 Monday to Thursday and until 5.30 on Fridays.

Local Authority’s duty to carry out inspection of Children’s homes under s80 of the Children Act 1989: Covid-19 Guidance

Local Authority’s duty to carry out inspection of Children’s homes under s80 of the Children Act 1989: Covid-19 Guidance

In the midst of the Coronavirus outbreak (‘Covid-19’), there has been little guidance as to what social workers should do when they are refused entry into the home of a child in care (or ‘looked after child’), due to the parent’s arguments that they are self-isolating or claiming that they have contracted the virus. There is a real risk that families may be using Covid-19 as an excuse to avoid contact with the Local Authority and therefore, places any children involved at risk of further abuse.

The recently passed Coronavirus Bill[1] and corresponding Guidance[2] is unfortunately silent as to any relaxation of a Local Authority’s statutory duty under the Children Act 1989 to carry out an inspection of children’s home in the current climate.

However, as Covid-19 and legislation surrounding it progresses and changes, there may be future legislation and guidance continuing to emerge in the near future. As it stands the current laws, regulations and guidance provided is still in force and should be followed. 

What is the applicable  Law? 

Children Act 1989 (‘CA 1989’)

Under section 80(1) CA 1989, any appropriate National Authority may cause to be inspected any premises where a child is living (s80(1) (a – l)).

Under section 80(5)(a), Local Authorities are authorised to carry out such inspections and shall have the right to enter the premises for that purpose at any reasonable time (s80(8)) and may under section 80(6) –

(a)     inspect the children there; and

(b)     make such examination into the state and management of the home or premises and the treatment of the children there as he thinks fit. 

2010 Regulations[3]

The 2010 Regulations set out in further detail what Representatives of the Local Authority are expected to do when seeing the child.

When considering the frequency of visits as part of their arrangements for supervising the child’s welfare, the responsible Authority must ensure that their Representative visits the child, wherever the child is living [Regulation 28(1)].

The Local Authority in undertaking their statutory duty, must ensure that their Representative visits the child, wherever the child is living and the Representative must speak to the child in private, unless –

(a)    The child, being of sufficient age and understanding to do so, refuses,

(b)    The Representative considers it inappropriate to do so, having regard to the child’s age and understanding, or,

(c)     The Representative is unable to do so

[Regulation 29]

What does the Law mean in the current climate?

Although the Local Authority has the right to enter the premises (s80(8)), there is no express wording within either section 80(6) CA 1989 or the 2010 Regulations stating that the Representative must do so in order to carry out their duty. Section 80(6) simply states that a Representative may enter the premises. Therefore, it is arguable that a Representative will not be in breach of their statutory duty under section 80(6)(a) or (b) if they carry out their inspection and assessment without entering the premises.

If such an interpretation is to be placed on section 80(6), the corresponding Regulations and Guidance should be read in the same light. Paragraph  3.245 of 2015 Guidance[4] states that ‘The standard of care should be observed and the child’s bedroom sometimes seen’. There is no express wording within the 2015 Guidance stating that the standard of care must be assessed in the child’s home, only that it ‘should be observed’ and  the child’s bedroom seen ‘sometimes’. Further, the Local Authority’s duty under section 80(6)(b) need only be carried out where the Representative ‘thinks fit’. Therefore, it is not necessary for these to be viewed on every home visitation. As such, an assessment of the state of the premises and the child’s care within it should only be undertaken where the Representative considers it necessary and will be a decision based on their own and the Local Authority’s professional judgement.

In addition, paragraph 3.250 of 2015 Guidance states that ‘Joint activities between the child and the social worker outside the home will allow the child to speak more freely’. This not only establishes that inspection of the child may take place outside of the premises, but also lends itself to achieving the Representative’s duty to speak to the child in private [Regulation 29] (or speak to the child alone – paragraph 3.243, 2015 Guidance).

There is further argument to suggest that the Local Authority will not be in breach of their statutory duty if they are unable to speak to the child in private, where the child is of sufficient age and understanding. Regulation 29(1)(c) states that Representative must speak to the child unless they ‘are unable to do so’. There is no further clarification of Regulation 29(1)(c) save for the limited explanation in the 2015 Guidance which gives the example of ‘because the child is out’. Therefore, it is arguable that the Regulation is open to interpretation as to potential barriers stopping the Representative from speaking to the child. This may include the parent’s refusal to allow the Representative to see the child, due to their ‘self-isolation’.

Practical Guidance:

In light of the Government’s response to Covid-19, social workers should consider their own safety and the safety of those around them and should refrain from unnecessary exposure where possible. However, following school closures and the Government’s encouragement for families to stay home, there is an increased risk posed to children in care who rely on third party sightings, particularly those provided by schools, in order to ensure that their safety and welfare is being maintained. The Local Authority may need to consider reviewing the families in their care and assess whether additional visits/contact should be put in place for families who are now unlikely to have access to other agencies they have previously relied on or have been involved with. 

Video-Calling

If the parents have mobile phones or laptops that can accommodate either Facetime, Skype or other video-calling technology,  the social worker will have the ability to;

  • inspect the state of the premises and the child’s bedroom
  • see and speak to the child

N.B  Family members should be asked to leave the room that the child is in and close the door to ensure privacy. 

Visitation ‘on the premises’

If the parents are unwilling to allow the social worker to enter the property, it may still be possible to view the child at a distance, for example;

  • The child may be presented to the social worker at the front door. This will allow the child to be seen and spoken too if the parents distance themselves.
  • The child may be presented in the garden of the property if the social worker is able to gain access to it, without having to pass through the inside of the premises.
  • If there are windows on the lower floor of the premises which can provide a sufficient view of the child and the inside of the premises the social worker may inspect and speak to the child.

N.B. Following Government guidance, a distance of at least two metres should be kept between the social worker and the child.

Visitation ‘within the premises’

Whilst the social worker has the right to enter the premises (s80(6) CA 1989) it is unlikely that it would be appropriate without Court approval. This is because where an inspection must take place within the premises, the social worker must be fitted with protective equipment before entering the premises. Such equipment may include, but is not limited to;

  • Face-mask
  • Gloves
  • Protective clothing
  • Where possible, protective equipment should be provided to the children being inspected

The welfare of the child is the paramount consideration. Such measures are likely to be considered extremely damaging to the child’s mental and emotional wellbeing and should be avoided wherever possible. Such action should only be taken where absolutely necessary. It is for the Local Authority to consider in their professional judgement whether they deem these actions necessary but given the likely impact on the child of such a visit, it would be advisable for an urgent application to be made to Court before any such actions are taken.

N.B The list of protective equipment is not exhaustive. The social worker should refrain from making contact with any objects in the premises and should, where possible, keep a distance of two metres from all other persons at all times. If any Representative fears that they have contracted the virus or been in contact with any symptomatic individual, visitation within the premises is not advised.

Refusal to co-operate

If the parents initially refuse to co-operate the Local Authority should consider if the visitation can be re-scheduled and whether any further provisions can be put in place in order to facilitate and carry out their duty.

If the parents either continue to refuse inspection of the child, or having attempted to carry out the visitation using alternative methods which have not been effective, the matter will need to be referred to Court in order to enforce any current order in place.

If in more serious circumstances, there is an immediate risk to the child’s welfare, the Local Authority will need to make an application to the Court to remove the child and place it in its care forthwith.

For further updates from the judiciary visit judiciary.uk.

 

Liberty Crawford

Magdalen Chambers

27 March 2020

 

[1] https://services.parliament.uk/bills/2019-21/coronavirus.html

[2]https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf

[3] The Care, Planning, Placement and Case Review (England) Regulations 2010

[4] The Children Act 1989 Guidance and Regulations: Volume 2: Care planning, Placement and Case Review 2015

As published by Class Legal