Private FDR – Frequently Asked Questions – Covid 19 and beyond

Given the understandable delays in the Court system brought on by the Covid-19 crisis we have seen an unprecedented number of enquiries about our Private FDR service.  Even more so following the encouragement of the judiciary both locally Financial Remedy Work During Lockdown  and nationally Presidents Guidance Covid 19 for parties to consider Private FDRs as a means to resolve their cases.

To assist those who are considering a Private FDR we list below some of the questions our clerks are being asked most frequently:

  1. How much does it cost?

At Magdalen Chambers we pride ourselves in making the legal process accessible.  We offer a range of options tailored to the level of complexity of each case.

In most cases an experienced Private FDR Judge can be provided for between £1,000 and £2,000 for the day.  This cost is shared between the parties unless otherwise agreed

  1. How quickly can the Private FDR take place?

Subject to availability a hearing can normally be arranged within two weeks – complex cases will, as a rule, require longer to prepare.  However where there is an urgent need for matters to be resolved quickly every attempt will be made to assist the parties to do so.

  1. Can the hearing be conducted remotely?

All our Private FDR Judges and Barristers are able to work remotely.  We find that the most effective way to conduct an FDR is by one of the available video platforms.  The parties will generally just require access to a computer and broadband.  Our clerks will speak to both parties to identify the best platform to work on.

  1. What if one party is unable to use video-conferencing technology?

We have video-conferencing facilities in Chambers available upon request to parties taking part in a Private FDR organised by Magdalen Chambers.  Use of the facilities will be subject to strict safety criteria which will be discussed with the party upon request.

  1. How long will the Private FDR last?

Like the ideal court based FDR a Private FDR will normally be scheduled to start early in the day.  Unlike a court based FDR the Private FDR Judge will then be available exclusively to the parties for the whole day.  To maximise the chances of settlement the parties should also make themselves available all day.  On occasions where a second day of input would be of benefit this can be arranged.

  1. What if one of the parties has to work Monday to Friday?

We understand that during the national Covid-19 crisis those who are currently able to work may find it difficult to take time off.  Therefore whilst the current situation persists our Judges and Barristers are available to work outside of the traditional Monday to Friday working week where necessary.

  1. Is every case suitable for a Private FDR?

The aim of an FDR is to find a way to settle proceedings by consent.  In the current economic climate the future may simply be too uncertain for the parties to reach an agreement.  This can be discussed with the Private FDR Judge before a booking is made.  Alternatively parties may wish to have the input of a Private FDR Judge to settle some of the issues in a case whilst leaving other issues to be resolved after the crisis has abated.

Local Authority’s duty to promote contact between a child in their care and relevant parties under section 34 of the Children Act 1989: Covid-19 Guidance

In the midst of the Coronavirus outbreak (‘Covid-19’), there has been little guidance as to whether Local Authorities have the ability to suspend contact between a child in their care and parties who have a right to contact with that child, either by parental responsibility or by a Court order.

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 promote contact between a child in care and any relevant party as per section 34 and Schedule 2 paragraph 15 under the current circumstances.

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’)

Where a child is in the care of the Local Authority, section 34(1)(a-e) and Schedule 2 paragraph 15 of the CA 1989 outlines the individuals that the Authority shall endeavour to promote contact with and allow the child reasonable contact with. 

Can the Local Authority suspend contact?

Due to the increasing risk that Covid-19 poses on the safe facilitation of contact, Local Authorities may consider suspending contact arrangements. This would be likely to result in parents and/or ‘connected persons’[3] of the child in care making an application to the Court under section 34(3) of the CA 1989 to allow contact to be re-engaged.

Paragraph 2.78 of 2015 Guidance[4] outlines  the presumption that there should be continued contact between the child and their family whilst the child is in the care of the Local Authority. [5]

However, the Local Authority is only under a duty to promote contact between the child and the parents and/or connected persons, ‘unless it is not reasonably practicable or consistent with his welfare’[6]. If the Local Authority is concerned that the child in their care would be at risk of coming into contact with a carrier of the virus, it would be arguable that such contact would not be consistent with the child’s welfare. Paragraph 2.96 of the 2015 Guidance provides further clarification, in that the responsible Authority must allow reasonable contact, ‘provided that contact is consistent with the Local Authority’s duty to safeguard and promote the welfare of the child’, thus supporting the caveat provided by Schedule 2 paragraph 15(1).

Section 34(6) CA 1989

Local Authorities can refuse to allow contact without making an application to the Court under section 34(6) CA 1989.

 Any refusal of contact under section 34(6) will only provide a temporary termination for seven days.  According to the current Government guidance, if an individual contracts the virus, they must self-isolate for seven days. If any individual contracts the virus in a household of several people, other individuals must remain in isolation for 14 days[7]. If any relevant parties were to contract the virus themselves or come into contact with an individual who has had the virus, a suspension of contact for seven days would not be a sufficient period of time to ensure that the virus will not be passed on, particularly in larger households. Therefore, if the suspension of contact is based on the Local Authority’s fears of Covid-19, it is not advisable to rely on s34(6).

Section 34(4) CA 1989

The Local Authority may also refuse to allow contact under section 34(4) CA 1989, whereby on an application, the Court may make an order authorising the Authority to refuse to allow contact between the child in care and any person mentioned in section 34(1)(a – d) and named in the order.  However, Thorpe J expressed in the case of Re S (Care: Parental Contact) [2005] 1 FLR 469, CA at [11], ‘a section 34(4) order should not be made… merely against the possibility that circumstances may change in such a way to make termination of contact desirable’. Due to the very real threat that Covid-19 poses on the public, it is arguable that the circumstances have already changed from what was the status-quo in England, before the virus was classed a ‘pandemic’.

If granted, contact will remain suspended until the order is discharged. There must be some material change in circumstances between the making of the order and the application to discharge it[8]. A clear material change would be a point where the Government confirms that Covid-19 is no longer a threat to the general public.

Any decisions to make a section 34(4) application should be carefully considered by the Local Authority. Such  an order may not be suitable where none of the relevant parties are showing any signs of Covid-19 symptoms and have not had contact with any other person who is symptomatic. However, the risk is that there is a level of uncertainty. The consequence is not only that the relevant parties could contract the virus themselves, but also that they could pass it on, putting others surrounding the parties at an unnecessary risk. The Local Authority should rely on their professional judgement in deciding what action to take, taking into consideration the welfare of the child and the effect on the child of no contact.

What does the Law mean in the current climate?

There is no express wording within section 34 that states that the Local Authority must promote contact through face-to-face meetings. Section 34 and paragraph 15(1) [Schedule 2] CA 1989 states only that the Local Authority must ‘endeavour to promote contact’ and ‘allow reasonable contact’. There is no further clarification of the definition of ‘contact’ within section 34, as such, there is room for interpretation as to what can amount to sufficient contact.

For example, paragraph 2.92 of the 2015 Guidance provides that meaningful contact can also be achieved through indirect means such asletters, telephone calls and exchange of photographs  and paragraph 2.94 encourages the use of modern technology in order to maintain contact. Therefore, the Local Authority will not be in breach of the duty to promote contact if they are unwilling to facilitate in-person contact due to fears of Covid-19.

 Practical Considerations

Given the recent guidance provided by the Government in response to Covid-19, consideration should be given to the safety of the child in care and the safety of the relevant parties. All parties should refrain from unnecessary exposure where possible. If the child in care, relevant parties, or any other individual living within the same household is symptomatic or has been in contact with another individual showing symptoms of the virus or the child is sick with something that might be the virus, then face to face contact should not take place.

 Video-Calling

If the relevant parties have mobile phones or laptops that can accommodate either Facetime, Skype or other video-calling technology, this would allow the parties seeking contact to see and speak to the child.

N.B. Video-calling presents the most efficient way to provide contact between the parties without putting any individual at risk of exposure.

Other forms of indirect contact

Parents and/or connected parties can have contact with the child indirectly through;

  • Letters
  • Gifts
  • Photographs
  • Telephone calls (Voice-calls only)

Contact in the Community

If the parents or connected persons wish to see the child in person, contact with the child may be possible from a distance, for example;

  • The child in care may be able to have contact at the front door of the household they are living in. This would allow the child to be seen and spoken too without having to leave the household and the parent or connected person would be able to safely distance themselves.
  • Contact could take place in the garden of the property if the parent or a connected person is able to gain access to it, without having to pass through the inside of the premises.
  • If the household that the child in care presides has windows on the lower floors of the property, which can provide a sufficient view and that can be opened so that the parties can speak to each other, this may allow contact to take place if the carer of the child is agreeable to contact taking place in this manner.

Current Government measures[9] have restricted the public’s need to leave their home. The Local Authority will need to review whether contact that has been previously facilitated at Contact Centres should continue and whether the risk posed to contact centre supervisors can be safeguarded against. The current restrictions on movement have been scheduled to last for three weeks, however, there are fears that such restrictions will continue for longer than initially presumed. On that basis, it is advised that face-to-face contact within Contact Centres should not take place. By offering and facilitating alternative methods of contacts, such a video-calling and letters, the Local Authority will not be in breach of their duties to their staff and under the Children Act 1989 to promote and facilitate contact.

In removing the option of face to face contact, the Local Authority would need to be prepared to deal with more applications for mother and baby placements for very young children. Arguably the case of keeping a mother and baby/toddler together would be strengthened if the alternative was no in-person contact whatsoever.

N.B. In keeping in line with current Government guidance, a distance of at least two metres should be kept between the parties for any in-person meeting. Open air contact, e.g. in parks, is to be advised against in light of the Government’s restrictions limiting public gatherings to a minimum of two people. If social workers believe they can effectively supervise contact from a distance, so as to ensure the parties are not ‘gathering’, there is a small possibility that open air contact could be carried out as the parent and child’s daily exercise. The Local Authority and the social worker would need to use their professional judgement to decide if they can safely facilitate contact in this way.

 Travel

If any of the relevant parties are required to travel for contact, public transport should be avoided as this may increase the risk of exposure. If one party in unable to travel, consider if it is possible to arrange with the other party to travel for contact instead, if they are able to do so safely.

N.B. Where parents do not live in the same household, children under 18 can be moved between their parent’s homes.[10]

Government Intervention

Due to the lack of clarity surrounding the Local Authority’s duty to promote and facilitate contact, the Local Authority could consider contacting the relevant Government Minister directly to seek clarification as to whether Government envisages that face-to-face contact can take place under the current circumstances.

Whilst guidance has been issued concerning private law cases and children moving between households, that guidance does not assist in this instance. Given the pace of Government advice that is being sent out, this advice may be superseded by Government Guidelines forthwith.

 Refusal to co-operate

If the parents initially refuse to co-operate in using any alternative processes to facilitate contact, the Local Authority should consider first if the contact can be re-scheduled and whether any further provisions may be put in place.

If the parents either continue to refuse to co-operate, or having attempted to facilitate contact using alternative processes they have not been effective, the Local Authority will need to make an application to the Court under section 34(4) or apply s34(6) CA 1989 to suspend contact.

Conclusion

Recent developments have not led to a legal change in a Local Authority’s duty to safeguard and promote welfare and allow reasonable contact. However, during the current crisis it is likely that the word ‘safeguard’ will form the overriding basis when considering whether contact can be safely carried out. The Local Authority’s duty towards its supervising staff and foster carers means that exposing them to numerous families contact sessions is unlikely to be safe. Without that supervision, contact is likely to be rendered unsafe for other underlying reasons, which resulted in the child being in care. Thus, the practicality of arranging face to face contact poses significant problems particularly as there is no caveat within the current rules for parents to leave their home to travel to contact, placing them in breach of the current rules.

Pragmatically, at the present time, the only way to comply with the Local Authority’s duty is to offer and promote other indirect types of contact, but to commit to keeping the situation continually under review subject to Government rules.

For further updates from the judiciary visit judiciary.uk.

Liberty Crawford

Magdalen Chambers

[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] any other person named in sections (b) – (e) of section 34(1) CA 1989

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

[5] This sentiment extends to those with parental responsibility for the child and connected persons [paragraph 2.79 of the 2015 Guidance].

[6] Schedule 2 paragraph 15(1) of the Children Act 1989

[7] https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance/stay-at-home-guidance-for-households-with-possible-coronavirus-covid-19-infection

[8] Re T (Termination of Contact: Discharge of Order) [1997] 1 FLR  517, CA at [526]

[9]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/874742/Full_guidance_on_staying_at_home_and_away_from_others__1_.pdf

[10] Ibid

As published by Class Legal

 

Financial remedy work during the lockdown

Hot off the press from Devon’s Financial Remedy Judges is a protocol for dealing with Financial Remedy work during the current public health emergency. It provides that:

  1. FDAs currently listed will remain in the list as telephone hearings.
  2. New FDAs will be listed as telephone hearings for the foreseeable future.
  3. Parties are encouraged to agree directions for FDA wherever possible, using the accelerated written process for FDAs (see the fourth schedule to the FRC good practice protocol). In practice, paper-based disposals of FDAs have been with us for a long time and will continue.
  4. FDRs listed for a date within the next 21 days will be adjourned. This will give parties/representatives some breathing space to take stock both in terms of the practicalities and the economics of their case.
  5. FDRs which are adjourned in this way, will be listed for a telephone directions hearing on the first open date after 21 days. The hearing will be used to discuss whether an individual case is ready to proceed to an FDR and, if so, how that is best achieved remotely.
  6. Cases with FDR listings beyond 21 days will remain in the list as telephone directions hearings as per paragraph 5 above.
  7. Private FDRs are to be encouraged but cannot be directed (other than by consent).
  8. Final hearings listed, should be given a telephone appointment as soon as possible to consider whether a remote final hearing is possible (and, if so, the appropriate directions) or, if not, to adjourn.

Magdalen Chambers is very much open for business during the emergency. All Family Team members are confidently working remotely using a variety of platforms including Microsoft Teams, Zoom, Skype for Business and, by telephone.

Our Financial Remedy practitioners are committed to ensuring that Financial Remedy cases continue to be resolved during the crisis. We are able to offer a variety of services, including:

  1. Video conferences at home or in our video suite in Chambers.
  1. Private FDRs with a part-time or retired judge acting as FDR judge. These hearings are very well suited to being conducted remotely and with less delay than waiting for a court hearing.
  1. Our experienced financial remedy practitioners remain available to represent clients at FDAs, FDRs and final hearings remotely. Our experience convinces us that most cases (including final hearings) can be conducted in this way.
  1. Advising clients in writing and in conference.
  1. Early neutral evaluation – where both parties jointly instruct a single agreed barrister to advise on an appropriate settlement or on a specific issue in a case.

Please contact our clerks for more information.

Have you had your court hearing about your children adjourned or cancelled because of Covid-19? Do you need a decision now about your child?

There is an alternative which is quicker and more economical than the court, and is legally binding. It is called the Children’s Arbitration Scheme. Specially qualified children specialists are able to make legally binding decisions under this scheme which have the same effect as a court order. The difference is, this can be done with one or two hearings at a fraction of the cost of court proceedings. Both parties have to agree to this process and it has to be approved by the Arbitrator as suitable for arbitration.

Our Children’s Arbitrator is Sarah Evans, who also sits as a Deputy District Judge. If you need legal representation we can also offer specialist direct access barristers within Magdalen Chambers who are all totally independent and can assist you at the arbitration hearings and behind the scenes.

We can operate remotely during this time and have an in-house video conferencing suite for this purpose.

Contact us to check if your case would come within the scope of the scheme by emailing clerks@magdalenchambers.co.uk

For more information visit:
Ifla.org.uk
http://ifla.org.uk/divi/wp-content/uploads/Children-Scheme-Rules.pdf