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Family Law

Update from the Chair of the Society’s Family Law Committee to all Family Practitioners

This update is intended to assist family law solicitors as they continue to go about their professional duties in the face of the Covid-19 pandemic.

Offering legal advice and assistance to clients should continue as far as possible. However, the health of you, your family and employees must remain the main priority.

Liaison has taken place with the Family Bar Association to ensure, where possible, that messages to members are clear, concise and above all consistent.  The last 24 hours have seen emails from individual judges as to proposals for the running of their courts.  These details are set out below.  

The Society issued an e-communication on Tuesday 17th March 2020 which carried a Statement from the Lord Chief Justice as well as details of arrangements for matters before the Bankruptcy Master, Family Reviews in the High Court and business at Craigavon Family Proceedings Court.

Further updates from the Office of the Lord Chief Justice and NICTS will be provided as soon as they are available.

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Correspondence issued by Master Sweeney on 18 March 2020

“As I have indicated to you, given the very difficult and extraordinary circumstances which currently prevail, I shall be wholly understanding with regard to adjournment applications made by email this week. In fact, I see the good sense of that approach while we consider the safest way of progressing cases where possible in the future. I hope this is of assistance to you and your members”.

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Correspondence issued by HHJ Kinney on 17 March 2020 in relation to cases in the Family Care Centre

As the current Covid-19 emergency continues to evolve, the FCC judges have decided to introduce some basic measures to help protect the health and well-being of all court users, whilst allowing the work of the court to continue where possible.

The judges acknowledge that we are in an incredibly fast moving environment and that circumstances may require further adaptation from the courts for as long as court sittings continue. We will continue to take on board all guidance from the Office of the Lord Chief Justice and urge all court users to avail of the government advice available through official channels for the steps required from all of us to meet this emergency.

The following steps seem appropriate at this stage. Other possibilities, such as teleconferencing or skype for legal representatives, will be explored and may form part of future guidance.

  1. Many reviews can be successfully managed on an administrative basis. The parties should liaise (by phone or email) and establish whether an agreed position can be put to the court. If so, it should be provided to the court as soon as possible and preferably 48 hours before the review for cases listed from Monday 23rd March onwards. This will allow the judge to consider whether an administrative direction can issue if he or she is content with the agreed position.

  2. If there is an issue which will require judicial direction, that also should be clearly identified to the court as above. Only those parties and legal representatives required to deal with the point at issue should attend court.

  3. Parties and witnesses should only attend court if there is a need for oral evidence from them. It will be sufficient in current circumstances if parties are available to give instructions by phone. In particular, social workers and guardians should stop routinely attending reviews. They should only be present at court if there is a need for oral evidence. They should however be available to provide full instructions at all reasonable times and certainly whilst the court list is active.

  4. Where hearings are actually required the parties should identify to the court office in all cases

a)    whether the case will require oral evidence or will be based on submissions

b)    the precise issues involved and requiring resolution

c)    what witnesses are required.

  1. Where any witness has particular vulnerabilities the court will consider special measures such as video link evidence or, if available and appropriate in the view of the judge, face time/Skype. Any such request should be made to the court well in advance of the hearing date and on notice to all other parties.

  2. Even in the short time since the government’s most recent announcement on protective measures in the preparation of this document, we are aware that a number of counsel have indicated they are not prepared to physically attend at court. Each set of circumstances and case is of course different, and each individual must assess their own personal circumstances, but we remind all lawyers of their duties to their clients and to the avoidance of unnecessary delay in cases involving children. This may well require the active consideration in some cases for the transfer of papers. 

  3. Direct contact with the court staff should be kept to a minimum and email used in preference to hard copy for possible. The judges will attempt to maintain social distancing within the court room and therefore may limit the number of users who can be present at any one time.

All users should continue to use basic and effective ways to help prevent the spread of infection including

  • ensuring that the entire workplace environment is kept clean and hygienic
  • maintaining appropriate distance from others
  • prioritising the regular and thorough use of hand washing
  • using and burning tissues were appropriate
  • follow all other measures recommended by the official guidance.

We appreciate that these are unprecedented times and it is likely these directions will require further change as the situation changes. Thank you all for your cooperation.”

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Supplementary correspondence from HHJ Kinney on 18 March 2020

“I understand that some concerns have been raised about the guidance issued today, in particular, paragraph 6. To try and assist, can I clarify that the guidance does not require people to attend court. It attempts to minimise those actually attending court where cases are ongoing.

Paragraph 6 is to address the situation where one party may be entirely peripheral to the central issues in the case and therefore there is a balance to be met between the individual lawyer not wanting to attend court for personal reasons and avoiding unnecessary delay and meeting the needs of children. That is not to minimise the importance of following all relevant public health advice and ensuring the health and safety of all users.

I did not think this would be particularly controversial and it acknowledges the good sense and good will of practitioners when they are assessing how a case might proceed. I understand that there is now a range of guidance, recommendations and advice coming from individual judges at different tiers and I hope that all can be brought together in one coherent and consistent message. Paragraph 6 is now most likely to be relevant where there are emergency applications before the court.

The guidance is designed to assist, not cause further problems.”

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A Template Form which can be used in Family Care Centre cases is attached to this message.   

District Judge Meehan has also confirmed that he is willing to accept this form when an adjournment is being sought, and that such cases will be relisted in 12 weeks.

It is understood that a template for use in Ancillary Relief cases will issue shortly.

Please be mindful of GDPR duties and requirements when completing the template and do not feel compelled to disclose sensitive personal medical information

Suzanne Rice

Chair – Family Law Committee


Other correspondence

The Family Bar Association to their members

“1.  No member should feel compelled to attend court this week save for urgent matters which would include:

           Ex-parte applications where an adult or child is at risk;

           Emergency applications in respect of children (e.g. emergency protection orders; interim care orders where removal is required)

2.  Non-urgent cases should be dealt with by way of the written template submitted at the earliest opportunity with a request that it be brought to the immediate attention of the assigned judge.  The written template will be adapted tomorrow for Ancillary Relief cases, in the meantime e-mails will be accepted.  Members should not attend Court.”

Ø  NIGALA to the NICTS

“In response to the current Covid 19 emergency, NIGALA staff have been provided guidance in compliance with government directives.

NIGALA Staff have been advised;

·         Manage your work in line with what is safe for you and others;

·         Only undertake business critical & essential work which involves face to face contacts;

·         If you are unable to have a  face to face meeting, use your phones for interviews and join meetings by phone;

·         Ensure the courts are aware of any restrictions to your work via your solicitor or letter;

·         Plan ahead – don’t assume you can visit a child or family or attend meetings;

·         Check with Management if you are in doubt.

This means that Guardians will work from home, join meetings by phone, gather information by making phone contact with foster carers, residential homes etc.  Regarding direct communication with children, where Guardians can speak with children by phone they will do so and the use of technology which can provide for face time is being facilitated.

With regard to court attendances and the filing of reports, increasingly as the COVID_19 situation escalates, Guardians will not be in a position to provide court reports as has been usual due to the social distancing measures that have been advised by the government in response to the current crisis.

Specifically, this means that Guardians will not be carrying out visits to family homes/foster homes, residential care homes unless it is safe, essential as stipulated by HSC guidance. Where possible Guardians will be conducting enquiries by phone.  Their reports will reflect this shift in working patterns during this specific period.

Regards court attendances, Guardians have been advised that if attending court is not essential, the same guidance applies, in that they comply with government guidance on social distancing measures at this time. 

We appreciate that this is very challenging time and we are in communication with Trust Directors, the Department of Health, and Court services as this situation progresses.

Peter Reynolds

CEO NIGALA


Documents

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