Family Law: a year on from the first COVID19 lockdown

One year on from the first national Covid19 lockdown, I wanted to take this opportunity to consider how Family Law, particularly in the Highlands, has been impacted.

In early March 2020 I simply would not have believed you, if you had told me that I would spend the vast majority of the year sitting at my kitchen table, with my laptop and mobile phone as the only tools of my trade. Or that I would acquire a new Trainee, in the shape of my dog, who took up residence at my side. A year on, I am sorry to say that the dog has transferred his Traineeship to another firm, and now works alongside my husband in the study upstairs- Family Law isn’t for everyone.

On 24 March 2020, Macleod & MacCallum, along with other legal firms across the country, followed Government guidance and closed our office doors to the public and to staff. Legal and support staff, required to be put on Government furlough ( a new term in itself), leaving only the firm’s Directors to ensure the ongoing operation of the business. The demand for legal services continued despite Covid19. Directors, in addition to their normal duties, took over new roles covering reception, mail duties and the submission of legal aid accounts.

Technological Advances

What followed was a rapid learning curve for me, Fiona Campbell and Morag MacIntosh in developing our IT skills. One technological advantage that we did have as a firm, was the introduction of speech recognition software, in 2019. This device, whilst helpful, never matches the skill and expertise of an experienced secretary but it did assist us in combating the high volume of correspondence Family Lawyers have to produce daily. I continue to use speech recognition software now, despite thankfully having some secretarial support back in place. One positive, arising out of the pandemic, therefore is the improved technological skills of the team and appreciation of how technology can help us.

The lockdown has also accelerated the firm’s move towards becoming “paperless”. With mail systems for scanning all incoming mail for email distribution effectively coming in overnight in March 2020.

Video calls have also played a major part in our past year (not just for family quizzes!), they have been used for meeting with clients and to Notarise documents, putting clients under oath via video call and witnessing signatures. This was not permitted before Covid19, with such documents all having to be notarised in person.

The Court System

The largest impact upon the Family Law Team and many of our clients was, however, the closure of the Court system to all but emergency civil cases. On 26 March 2020, guidance was issued in respect of Civil Court business within the Sheriff of Grampian Highlands and Islands. All Ordinary Causes, including family cases, were continued for a period of 16 weeks, until further notice. All Proofs (Civil Trials) and Debates were discharged and we were advised that no such Hearings would be assigned before August 2020. The exceptions were cases that the Court considered urgent, including applications for child protection orders and applications for interim interdict. This tight scope of work did, mean that all actions for divorce and general child law cases stopped entirely. The Court’s application of the guidance was strict, the message being that only in cases where “extreme urgency” was demonstrated, could the Court consider dealing with new or existing cases.

Whilst these restrictions were necessary for the Scottish Court service to be able to comply with the government guidance, the impact upon non-resident parents, desperate to progress court actions of Contact, was significant.

Of course, extreme situations did arise for the Family Law Team. In early April 2020, an emergency Court action was raised and served upon a client of mine. Given the lockdown it was not possible for the case to be heard in the normal way, in person at court and so the Court assigned a Hearing to take place by telephone. In advance of the Hearing the Court asked the solicitors to lodge written submissions the day before the Hearing. Telephone Hearings have since become the new norm for Family Law practitioners in the Sheriffdom of Grampian Highland and Islands. As the court system gradually reopened during 2020 for non-emergency civil cases, the majority of both Procedural Hearings and Child Welfare Hearings now take place by telephone.

There are advantages and disadvantages to telephone hearings. The advantages being that these Hearings can take place in a more efficient manner, in terms of solicitors not having to all attend Court in person, sometimes requiring significant travel time and waiting, particularly within a Sheriffdom as geographically wide as ours. However, the major disadvantage is both the Sheriff and the solicitors’ inability to gauge each other’s responses over the phone, in the way we all do naturally when we can see each other’s expressions and body language. Different Courts also have different approaches to whether clients can be present on the telephone line during these Hearings, perhaps due to some parties inability to respect the authority of the Court process when its business is being conducted on the telephone, rather than in the solemn setting of a Court room.

The Scottish Court Service has, however, now progressed technology further and some Child Welfare Hearings, Debates and even Proofs now taking place using the secure video system known as WebEx. The system is a helpful tool for some Hearings which are not suited to the telephone, due to added complexity in the case. It does, however, rely heavily on technology working well, for not only the Court, solicitors but also clients. In my opinion it will never be as effective as a Court Hearing in person and in a Court room, particularly in terms of evidence being led and the Sheriff assessing a witness’ evidence. So, I am hopeful that as soon as it is safe to do so, I will be back in Court in person, on my feet addressing the Sheriff, rather than sitting at my kitchen table speaking into my telephone or laptop.

Our day to day business

Finally, the biggest change to my day to day practice as a Family Law specialist, is not meeting my clients face-to-face. Before March 2020 almost all initial meetings with a client took place in my office, in the City Centre of Inverness. Since then I have conducted all initial meetings either by telephone or by video call. Again, I think there have been some pros and cons to this new norm. Feedback from clients, is that they do enjoy the convenience of being able to access a solicitor from the comfort of their own homes, again particularly in a place like the Highlands where it can involve significant travel to get to Inverness or Macleod & MacCallum’s Portree office. The disadvantages are obvious. It can be difficult for clients to form a trusting connection with somebody over the phone or via video call. With Family Law in particular, personal and sensitive in nature, it is important that clients feel comfortable and trusting of their solicitor, from the outset. This means myself and my colleagues have over the last year developed our own rhythm in dealing with new telephone appointments, to put new clients at ease and help them to get the most out of their appointments with us.

Fiona, Morag and I are also all regularly appointed by Courts in the Sheriffdom, as independent Child Welfare Reporters or Curatrixes. Covid19 restrictions have meant that we have again relied upon video calls where meetings in person would have been the norm, not to mention getting imaginative and having meetings with children outdoors for walks or games in a park, to take their views for Court reports, in a Covid safe manner.

Following this one-year anniversary of the first national lockdown, we are grateful staff have remained well and there is a palpable excitement amongst Directors, that there is now light at the end of the tunnel in what has been a very challenging year. I myself am proud of what the Family Law Team has achieved in the last year, continuing to provide a high level of service for our clients, showing adaptability and new-found technological skills.

Jenna Thomson

Jenna Thomson
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March 24, 2021