Being a Family Lawyer through a Pandemic
2020 – Reflections on an ‘unprecedented’ year; How will Divorce look in 2021
By Ian Davies
18th March 2021
The beginning of 2020 seemed like any other year in my career as a family law solicitor. I had considerations and thoughts about what I/we wanted to achieve in the new year; alongside changes I/we wanted to make following the closure of the old year. But in the background, something was brewing. Little did I, or any of my colleagues, realise what 2020 really had in store for us.
On 23 March 2020, Prime Minister Boris Johnson announced that with immediate effect the entire United Kingdom would go into ‘lockdown’. This was an attempt to control COVID-19, an extremely contagious virus which was, in certain circumstances, deadly. Schools were shut; children suddenly had to adapt learning from home remotely. Businesses closed their doors; some never to open again. Workers were told to work at home, unless they simply couldn’t. A furlough scheme and many other fiscal remedies were hastily introduced to try and protect the economy. All of sudden our lives changed dramatically and, in many ways, forever.
The impact of the pandemic on family law
We are not a large firm, far from it, but we had to flex quickly. We had to protect our staff, as well as our business, while still offering services to clients (all of whom facing the same personal and financial concerns which we all had). We couldn’t place their needs on hold, waiting for the virus to be controlled and the country to open up again.
Court hearings were still listed; I had a number due to take place around the country in April, May and June. Other deadlines were in place, that had been set long beforehand. They still needed to be met but now without access to my desk, my paper files, or my secretary!
Survival mode kicked in to a great extent. We quickly ensured that all staff had what they needed to be able to work remotely. Thankfully, many of us – mainly solicitors, it has to be said – had periodically worked from home, so we all had laptops and a case management system which made the transition easier. We also arranged for our telephone system to be accessed by every staff member on their mobile phones, so our clients were not affected by our move from our 3 offices locations to our separate houses.
What does remote working mean for our family law clients?
Setting up home offices was the easy bit really. The challenge was that we were determined to maintain our excellent level of service to our clients who were having to deal with the same challenges, on top of the breakdown of their relationship.
It has always been important to offer a face-to-face service, certainly at that very first appointment when the client is often at their most anxious. At this point they have recently realised their relationship has finished; some have not made the decision to end the relationship themselves so are still in the ‘grieving phase’, trying to process it. Building a relationship at that initial meeting is very important. Your client has to trust that you are the one they need to help them through this situation, protecting them and also their children. Face-to-face that is much easier than a distant voice on a telephone; or even via a remote video link as has now become the norm. We have all had to learn new skills in communication and technology in a very short space of time.
Our offices and meeting rooms have been thoughtfully created to provide a very neutral space, away from the home which is associated with the difficulties the client now faces. As clients could no longer come to those offices, I was aware that I was now entering their homes by telephone/video link. This was a more personal experience for them. They often had to be cautious that they were not overheard by their children or, in some cases, the other party. I have had to learn and use new skills in communicating, as well as adapting habitual ones developed over a twenty year career. We have to build trust and reassurance in different ways, while still providing the level of service that is expected.
Lockdown, Family Issues and Divorce Rates
While life as we had known it almost ground to a halt overnight, divorce and relationship breakdown didn’t stop. If anything, lockdown magnified things. People who were used to spending a few hours together perhaps before and after work, were now being forced to spend days in unfamiliar situations with additional worries and concerns. Children of separated parents still had the right to continue the child living arrangements which were in place before – the Government were adamant on that despite the restrictions imposed. Those agreements needed to be managed, given this contagious virus which thrived on contact and proximity. All of a sudden, the less scrupulous had what they thought was a perfectly legitimate reason to obstruct carefully constructed arrangements and, in some cases, Court Orders.
Speeding up Family Court Processes
The Divorce process and the Court system has had to change and adapt beyond all recognition as well – something it has never been keen to do. However, all credit to it! It has changed and we now have a far more efficient and streamlined process than we had just under 12 months ago.
A year ago, I could be found regularly cursing the Court system for the maddening delays which were hugely hindering my clients from getting divorced. It was not fit for purpose.
When I first qualified (ouch, that makes me sound old) a simple divorce process could be dealt with, start to finish, in around 12 weeks with a good wind. Before the pandemic arrived, my advice was that clients should budget at least 6 months, more likely 9 months, due to the delays. A petition, like most documents, would disappear into the Court paper system and if you were lucky, it would get issued and then sent to the other party in around 1-2 months. Most Consent Orders confirming agreements parties had reached to avoid Court proceedings, delays, and costs, were taking up to 6 months to be approved by the Court. This was simply unacceptable given there was often provision for a sale of property, or a pension sharing order – where the instruction to the pension company to carry out that pension share could not be sent without the approved Order and the Decree Absolute.
Present data suggests paper based divorce applications are now taking nearly 50 weeks to conclude. That is a staggering and damning indictment on the system. The pandemic and lockdown simply exacerbated the problems as there were even fewer personnel to move matters forward within the Court system.
The Court system was already clogged up and failing miserably. It had been underfunded for years, leaving dwindling numbers of staff to deal with routine matters. The removal of Legal Aid from most areas of Family Law has led to more and more people ‘doing it themselves’ and misunderstanding or misusing the process. The result was that more and more Court and Judicial time was being spent (or, more accurately, wasted) dealing with frivolous applications, or matters than should and could have been dealt with more expeditiously elsewhere.
A pilot designed to move the divorce process online had commenced in late 2019, but only a handful of firms had been invited to use it. Following its success in significantly speeding the process up, this was rolled out to all firms shortly after the pandemic had started.
I am now pleased to say that in almost all matters I have since filed using that process, I can once again say that a simple divorce process can take around 12 weeks from start to finish (again with a good wind…).
Additionally, in August/September of last year and due to the stringent requirements for social distancing severely limiting the numbers of workers in offices at one time, further direction from the Family Justices provided for Consent Orders to be filed digitally. This is a hugely positive step. Again, I am pleased to report that all Consent Orders I have filed using this method have been returned extraordinarily quickly – in most cases a week or two, often quicker. I think the record is within 24 hours – which is some change from 6 months!
This system will continue to evolve; we can now file applications to start Financial Remedy applications online and in due course it is expected that applications for Child Arrangement Orders will also be added.
The Benefits of Remote Hearings in Family Courts
We have also seen technology, which has been available for years now, being used to revolutionise a creaking system when it comes to Court Hearings.
Within a Financial Remedy application, there are potentially three (occasionally more) hearings which may be required – a Financial Directions Appointment (FDA), a Financial Dispute Resolution Appointment (FDR) and then a Final Hearing. At each hearing both parties, along with their legal representatives if they have them, are required to attend Court. It is similar for children matters as well.
The previous court system would multi-list matters. This meant that on any given morning Court session (10.00am to 1.00pm) 2 or 3 FDA hearings would be listed to take place at 10.00, 11.00 and 12.00, each for around 30-45 minutes. There would possibly be a couple of FDR hearings as well, listed at 10.00am, for around an hour each. These hearings would be held before two District Judges (maybe more in larger Courts) and problems were inevitable if hearings overran etc.
As a family lawyer, my client and I would be required to attend Court around an hour ahead of the allotted time (in most cases this is requested by the Court). This would mean us being at Court from 9.00am when it opens, until the hearing takes place at say 12.30pm. After all that waiting the hearing may only last 5-10 minutes if you have agreed most matters. You would also have the commute to and from the Court, often taking up most of a day all in all. A highly inefficient practice.
While most Courts I have had the pleasure of attending are lovely buildings, they certainly were not designed either for comfort or with social distancing in mind. Many consultation rooms, if you were lucky enough to find a free one, would be cramped and unventilated with no windows.
When lockdown closed Court buildings, except in very exceptional circumstances, it meant that almost all Family Hearings were dealt with online. In the initial stages the technology was clunky, as we all got used to using it, but it has been improved and upgraded. Although the hearings were initially criticised as being somewhat ‘clinical’ in nature, they are working. Gone is the need to get up at 5am to avoid the London traffic to get to the Central Family Court for 9.00am. No more waiting for your hearing to take place at some point during the morning, then leaving after spending just 30 minutes or so with the judge, and finally getting home after 7pm.
Now you simply log into the Cloud Video Platform 5-10 minutes before your allocated hearing time. If the time has to be changed, you will get notified in advance so you don’t have to wait around. You have your hearing from the comfort of your own home/workplace (depending on your job) then you carry on with the rest of your day.
Lasting Changes at the Family Court
Much thought has been given to the wellbeing of all who are working at the ‘coalface’ as well. The example given above, although exaggerated slightly, was common place. The Ministry of Justice has now brought in a code of conduct designed to ensure the wellbeing of Court workers, which includes sticking rigidly to Court working hours of 10.00am to 4.00pm. Courts will only sit outside of those times in limited circumstances. They also discourage people from sending emails after 6pm and before 8am on matters for the next day at Court. This creates a better working atmosphere, alongside the significant reduction in foot fall in the Court buildings.
This is a system that is now here to stay, even when we come out of lockdown, as it has been proven to work and promote a better working environment. I fully expect that most Court hearings that do not require the parties to give evidence – so standard Directions appointments in both Financial and Children matters and most FDRs – will continue to take place remotely and via video platform, as opposed to in person at Court. Although I enjoy visiting some of those old Court buildings, I cannot say that I will miss the commuting to and from, or the time hanging around waiting for other matters to finish.
Not only has it helped Legal Professionals, clients I have spoken to after the event have found it much more beneficial. Many clients freeze at the mention of having to attend Court and will do everything they can to avoid it – even where it does not benefit them to do so. When they can deal with a hearing from the safety and security of their own familiar surroundings, whether that be their home or workplace, they can focus purely on what they want to achieve at the hearing. It means they are not worrying about going into the Courtroom and having to face a Judge, or the other party sat at the opposite end of the table. While they can see them on the Video Platform, they are not in the same room. Psychologically, that makes a big difference.
Mediation has changed in a similar way.
When the Family Procedure Rules 2010 came into effect it placed an emphasis on Alternative Dispute Resolution, as a way of trying to decrease the huge numbers of matters going through Court. The Rules brought with them Case Management provisions enabling a Judge to stop an application at any point, to order the parties to attend Mediation. We routinely discuss Mediation and attempt it before any application is made. Often, however, parties are disinclined to enter Mediation because it requires them to be in the same room as the other party, along with the Mediator. This can, psychologically, create problems for certain clients. Mediators have previously attempted shuttle mediation, where the parties are placed in separate rooms with the Mediator ‘shuttling’ between the two, but it still required the parties to be in the same building at the same time.
Now, lockdown restrictions have meant that most Mediations are carried out via Zoom/Teams. I believe that many are now more successful at reaching settlements than they were previously, for the same reasons that Court cases are more effective.
Looking beyond COVID-19
So, as we are now 10 weeks into Lockdown 3.0, there is plenty to be optimistic about. We have 3 vaccines approved for use the UK. Currently, 25 million people have had their first vaccination dose, with many also having had a second vaccination dose. The Government has also released a roadmap out of lockdown and back to some level of normality.
Having been on our knees for much of the last 12 months, we are slowly starting to recover. The economy, it is expected, will follow.
Divorce/relationship breakdown and children matters will always be prevalent but pleasingly, from such an ‘unprecedented’ year of misery for many, the divorce process has undergone a change that few would have expected. The system comes out of the pandemic a very different animal than the one that went in.
October 2021 remains the implementation date for ‘No Fault Divorce‘, we are simply waiting for a Statutory Instrument setting out the new law, which will be received shortly. This is a further ‘shot in the arm’ for those wishing to end their relationship more amicably.
I appreciate that I have rambled on for far longer than I had expected to, but I hope you have found this blog informative and an indicator of how, actually, the divorce process has changed itself for the better during the last 12 months.
This Remote Court Hearings Guide is approved by the Judiciary of the Family Court, which explains in more detail how the new Remote Family Court system works.
If you have any questions about anything in this blog; the process; or enquiries about a Family Law matter in general, please email me or call 01608 686590 to arrange a telephone, or video appointment.