The Operation of the Family Law High Court List during the Covid-19 Measures

The Operation of the Family Law High Court List during the Covid-19 Measures – Motions/Rulings and all Applications which are on affidavit

1. Practitioners are reminded of Practice Direction HC89. During the current Covid-19 emergency, consent orders may be made in the High Court without the necessity of parties attending in court. Where the court requires to be satisfied in relation to “proper provision”, then such consent rulings will be dealt with in court with essential attendees only. Otherwise, Practice Direction HC89 must be availed of.
2. Contentious motions, rulings and applications in special care, surrogacy and adoption matters can easily and properly be dealt with by less attendees than hitherto was routine. For example, it is rarely necessary to have senior counsel and junior counsel and a solicitor attend for each party. It is recommended that senior counsel or junior counsel or the solicitor attend on behalf of the party whom they are representing and on the basis that the other members of the legal team are available/present remotely as required. In that regard, the court will facilitate any necessary contact to clarify matters or to seek additional instructions during the hearing of any such matter.
3. It is not necessary for the litigants to attend in person at the hearing of the matters referred to above – save in very exceptional circumstances which ought to be flagged at least 2 days in advance to the court. For example, it is rarely necessary for the applicant or applicants in a surrogacy matter to attend the hearing of the application. The evidence will be available on affidavit and they can be available remotely if required. Likewise, in adoption matters. In this regard, it will be possible for the judge to speak to the child in question remotely using one of the platforms available – by prior arrangement.
4. Insofar as the Special Care List is concerned, the respective representatives should make every effort to minimise the number of attendees. It is not necessary to have senior counsel and junior counsel and the solicitor present as one of the team of representation is ordinarily sufficient. Remote access should be possible with other members of the legal team so that it can be availed of if necessary. Parents, social workers and guardians ad litem ought not to attend the hearing save in exceptional circumstances which ought to be flagged at least 2 days in advance to the court. All necessary evidence will be available from the respective parties on affidavit or by way of reports. Remote access will be possible when required.
5. The Central Office does require hard copies of paperwork to be lodged as previously. While this continues to be so, practitioners must ensure that a core booklet of the pleadings and necessary related documentation is filed in the Central Office by 4:00pm on the Wednesday preceding the hearing of the matter. Duplicates and copies of irrelevant correspondence and documentation should be extracted before filing. Each booklet ought to contain a summary or position paper with the relevant dates and details and issues set out in a chronological format at the front of the booklet – on one or two pages.
6. In contentious applications, the parties have in the past frequently requested the court to allow time for negotiation when the matter is first called in the List. While settlement and time for negotiation is encouraged by the court, it is no longer possible to facilitate such negotiation in the manner in which it has frequently occurred in the past (i.e. at the doors of the court). This is because of the pressure on courtroom availability and the need to limit footfall and the congregation of litigants and their advisors and witnesses in the precincts of the courtroom. For this reason, the parties are requested to discuss matters by phone or using some VMR facility in the period immediately preceding the listing of the matter – so that all avenues can be explored and exhausted before the matter is called in court. Put simply, the courtroom facility ought to be used for matters which require to be dealt with in court once it has proved impossible to resolve them away from court.
7. Practitioners, their witnesses, their clients and all those who need to attend for hearings in court are at this stage aware of the Covid-19 regulations. Social distancing is essential. The use of hand sanitisers is essential. Unnecessary attendees and archive box type clutter in court is undesirable. Everyone involved is requested to cooperate in this regard to assist the system operating.

Peter Kelly

President of the High Court

14th May 2020