Family Law

At time of writing, public and media suggestion has continued that the current lockdown will come to a natural conclusion as some time in the coming months. When or how remains a further mystery to family practitioners across the country but it stands to reason that this won’t be a sudden gear change. Remote hearings are still being listed with most in person hearings slated to start returning in August and following. That was the case even back in March and April.

What that says to me is that there will still be remote hearings taking place for weeks, maybe even a few months as they had been originally listed – it cannot be the case that in person hearings will suddenly recommence without warning. I might well be proven wrong on that point but for the foreseeable future, those remote hearings are likely to remain listed.

That makes my points from my last post perhaps all the more relevant as we continue pressing forward. How different does a remote hearing day actually look to a practitioner? That is the question I am going to examine today, by examining a day at court for myself and a pattern which has repeated itself over the past months.

Day Start: 07:30

Certainly, 7:30 does not look like my customary 5am – 6am starts. No torrid contemplation of the day ahead sitting on the tube or in the car. No rush or panic at the prospect of traffic or delay. I am, by habit, an early riser, so I have not enjoyed much benefit of later starts.

The morning ablutions are unchanged, save that my hair has become shaggier over the course of the lockdown. Breakfast feels a bit of a luxury – my typical fare is a croissant and a tea from wherever I’m able to get one en route. I get to sit at a table for once and take my time.

A second (or fourth?) look over the papers: 08:00

Getting the time and energy to reconsider the case after consuming it the day before is welcome. On a train this is not always possible and inconceivable if I was in the car. I can update an order, look over a few documents again I needed to refresh myself on. The inescapable nervous-excitement in the time before a hearing is still present, though I oddly feel that I get the opportunity to enjoy this in my own company without the distractions of a commute.

Secure the (working) premises: 08:30

Nearly all of us are bound to an office space or somewhere we can cloister ourselves for the length of taking instructions, discussions and the hearing. Children and animals needs to be corralled into safe spaces, doors secured and signed accordingly that I’m incommunicado for the following hours. Phones are checked for sufficient battery (though family lawyers are long in the habit of preparing for that) and windows on my computer screen flurry open presenting my papers, notes and of course, the draft order.

Instructions: 09:00

Calling a client directly to obtain instructions without them physically being present is generally uncommon to me. As mentioned in my prior post, the preference in family court proceedings is that we have the parties and representatives in person. Initiating a conversation by telephone is normally replaced on an ‘ordinary’ court day with waiting patiently for their arrival or meeting them upon my own arrival. No queues to the ushers desk to sign in, no desperately throwing a Position Statement and Draft Order to my opponent as we disappear back into conference rooms. In fact, no wrangle for conference rooms at all.. Everything has been e-mailed in advance, as usual, but the absence of needing to take the physical document and present provokes some doubt in me. I promptly e-mail my Position Statement in a second time moments before the hearing, in an attempt to allay my own concerns.

The process of taking instructions is slightly different though, as I can hear my client with children in the background and the definite sense that they are trying to multitask a dozen more things while simultaneously speaking to me. A parent at home with three children in front of them and a barrister on the phone asking about those children for a court hearing an hour or so away – I can already tell my client is under enormous pressure. More pressure than they would ordinarily be if they could make alternative childcare arrangements and attend at court.

Instructions take a little longer than usual – more so because I want to confirm my client is able to participate fully in proceedings due to their childcare arrangements. How many clients are in this boat – patiently and nervously waiting for their representative to call while worrying simultaneously about the children and facing another day where they have to keep them entertained and engaged?

In my last blog post, I considered only the impact on practitioners; but what about clients in difficult proceedings having to balance a dozen things at once? What has the impact been for my client managing all the children at home?

I explain to my client the procedure for a remote hearing – the court will contact them, place them in a conference call and there will be an unusual silence when they arrive in the call. I suggest the client mutes themselves throughout and suggest that we could text if they wish to give me instructions. Since most ‘smartphones’ are able to receive and send texts even during a call, this has been invaluable during hearings thus far. Other alternatives have been e-mail or e-mailing instructing solicitors present on the call. Less common, judges have invited parties to address them directly if a matter comes up which I haven’t been able to take instructions on.

Discussions: 10:00

It seems to be the case that we have all tried to replicate a normal court day via telephone. That starts with taking instructions, identifying the issues and then seeking out discussions with our opponents. Normally, it would then be for the parties to update the judge about when we are ready to go into court. However, we know that we have a listed appointment at 11:30.

I’ve arranged to speak with my opponent prior to the hearing. This doesn’t change much but I feel very odd in an adversarial process explaining an argument to a faceless voice on the other end of the phone.

I can’t help but wonder now what my opponent’s circumstances are; I have been involved in Zoom conferences with people in office spaces, people at the kitchen table and at least one where two people were in the garden.

I am now wondering whether I should move outside as the sun is beaming through my office window. I am not sure about the feasibility of conducting a hearing while sunbathing…

Common sense tells me that I already have my papers in front of me, a suitable chair and place to sit for the hours that follow and balance that with the inevitable move outside with all my various materials.

Moments before the hearing a note pops underneath the door that my wife is going to the supermarket and whether I need anything. I reply promptly and return the note back under the door. The novelty of being able to request more breakfast croissants via hand written letter moments before going into court is not lost on me.

The Hearing: 11:30

The call comes through and a studious automated voice tells me to press a few buttons and access the call. I mute the call and put my phone on speaker while I add to my draft order to reflect the content of discussions. The only other sound I hear is people breathing in anticipation and the patter of a keyboard.

I cannot stress enough how background noise interferes with the court hearing via telephone. It’s good practice to mute yourself if you aren’t speaking. The sound of chattering keyboards might have become the background white noise to many hearings in courts but on telephone they are amplified a few dozen times.

Our automated attendant now informs us that the hearing is being recorded. The judge (who has said nothing until this point) opens the case and we address the court. Interruptions are less common compared to many other hearings, with no parties loudly exclaiming at every submission by the other’s representative or the constant ‘hokey pokey’ of advocates leaping to their feet and sitting down as they make points. People are more prepared to wait their turn before making points for fear of either muddying comments. I’ve yet to hear a judge shout over everyone to take control of the hearing but there have been occasions where a combination of background noise, interposing and interruption have caused points to be completely lost. Everyone seems willing to wait their turn.

The hearing takes about an hour and a half. The issues are actually quite narrow but there’s a sense that the advocates and the judge want to express themselves in greater detail without the assistance of seeing one another. I catch myself belabouring and clarifying points a little more strongly than usual – I can’t see the judge or my opponent’s expression so I can’t tell whether they’re taking my points on board or not. So I just make the entire point to be sure. Maybe twice.

That is an odd result of telephone hearings I previously touched on – are we speaking more or less as a result? Am I trying to compensate for my lack of physical presence by saying more? Whatever the case, I can feel that my opponent is doing precisely the same thing.
The hearing concludes and as ever, I update my draft order during the hearing and e-mail it to my opponent while simultaneously calling my client to discuss what has happened.

Post hearing discussions: 13:00

When I call, my client seems to be struggling more and I get the impression it was not easy for them to focus on the hearing. I strive to keep matters brief and stay available as long as the client is able to accommodate me, reading back the draft order as my client does not have a computer to consider it. The client asks a few questions and most stem because they can’t see the draft order I’ve now produced.

Lunch: 13:00 -13:30

I eat lunch at my desk. It involves me crossing to the kitchen, ducking into the fridge and then returning to my lair. Once again, we are all aiming to preserve the status quo; normally, I expect my solicitors to be on lunch at this time before I update them so an e-mail to update them and the promise of a phone call after lunch.

This strikes me as a little strange – I’m still actively refusing to call someone who might not be available over lunch though I can be reasonably certain that they are at home and available. Then again, I shouldn’t assume everyone is always available.

A new peculiarity takes place over lunch as my opponent e-mails me asking if they can call; obviously they are thinking the same thing I am about the acceptability of calling without knowing my circumstances. I call them back, though I wonder if I should have e-mailed them and waited for their call. Does that make any sense? How strange I don’t consider my opponent’s circumstances when they’ve basically told me they are available.

We discuss the order in depth, knowing we both have in front of us. It’s agreed and sent to the court within the lunch period.
I’m done eating at this point and consider calling my solicitor at 14:00. Again, I can’t escape the social practice of waiting until after lunch.

Call to solicitor: 14:00

This is reasonably brief and itself isn’t unusual – I customarily will update solicitors after hearings via telephone, save them I’m either sitting in the advocates room or else lurking in a corner of the public waiting area. Everything seems in order.

I complete my attendance note, lodge the order with the court and then turn to another set of papers, steeling myself to repeat the entire process all over again. Judging from the size of the PDF, the bundle would be undeniably massive for this case if I printed it out. At least I can put one matter down for now and move onto the next one without the uncertainty of a long commute home or have to sit on a train staring blankly out of the window uncertain of what follows. There’s somehow more and less time in the day.

I don’t think I see or speak to anyone else in the house until well into the afternoon, engrossed in another set of papers. The strange loneliness of this, despite having spoken to my client, the judge, my opponent and my solicitor in one day, is not lost on me.

Lessons Learnt?

Thinking about the hearing afterwards, it’s worth remembering to always consider your client’s circumstances. This doesn’t normally come up; people have attended the court building for the hearing so I know I have their time and attention. But what of other distractions? When a judge tells the parties they need to find a space away from others and reminding them that the hearing is taking place in private, how practically easy can that be when you have been on lockdown with children in the house?

Not everyone has a convenient place to ‘hide’ from their household for an hour; I wonder whether parties have fled to bathrooms, bedrooms or somesuch in order to find somewhere quiet and private. Does everybody, practitioner and party alike, have that space available to them?

The default position of everyone seems to be to replicate the hearing as it would normally happen; instructions, discussions, hearing, order, aftercare. Sometimes instructions again. I might have to call my client four or five times over the course of the day. Are they waiting to hear from me or is it a surprise to them? Some hearings require us to appear again before a judge – that has often involved a flurry of e-mails to request the call be resumed. Or a party is unable to join the call – more delays.

Telephonic communications are not operating in isolation either – e-mails fly back and forth during hearings as judges request other documents; e-mails sent to request the availability of calling. Am I still allowed to call someone over lunch when I don’t know their circumstances? Should I wait? And what of the loneliness – speaking to sometimes half a dozen people in a morning or afternoon and yet barely seeing or communicating with those in your own household for the entire period. You feel more isolated; more uncomfortable. Not even the assurance of seeing others at court. A morning or perhaps a day without any human contact at all.

Then there are positives; knowing that your hearing is taking place at a fixed time without jostling for a place. Knowing that you are in a comfortable and familiar environment without anyone else there and able to focus on the case. That the hearing is less fractious, less disorganised. And of course, the absence of a commute.

I wonder to myself how sustainable this all is – how would I have cross-examined a party, how would we have conducted witnesses in a full trial? This is only one experience of a full court day. For others, as always, the circumstances can change everything.