Family courts have had to adapt swiftly to remote working. This article summarises the Legal Aid Agency’s guidance on the Family Advocacy Scheme.
In pre-COVID-19 times, family practitioners knew that they probably wouldn’t get paid if they didn’t have a properly completed advocates attendance form EX506
(colloquially known as a FAS form) for every hearing. Now that online hearings are routine, para 6.5 (page 50) of the Legal Aid Agency’s (LAA’s) Civil finance electronic handbook
(version 3, 17 August 2020) applies: ‘An advocates attendance form may not be available in hearings undertaken remotely, for example by video, webcam or telephone conference … notes of the hearing on the brief or an attendance note will suffice as evidence of the hearing.’ If bolt-ons are included as part of the claim, you should include details in the attendance note.
Updated ways of working
In view of the significant increase in remote family hearings, the LAA and HM Courts & Tribunals Service (HMCTS) have issued information about how the Family Advocacy Scheme (FAS) operates in these circumstances (Remote family hearings: updated ways of working
, version 2, 15 April 2020). The document will be updated on a regular basis.
Arranging remote hearings
The choice of platform and who will arrange a remote hearing is a matter for the judge. If an advocate incurs specific costs in setting up a remote hearing, they can be claimed as a disbursement. Where a client incurs an additional cost in participating in a remote hearing, eg, additional data charges, then that is claimable as a disbursement. However, the cost of a Zoom licence applying to an organisation, for example, is an administrative cost and cannot be claimed as an individual disbursement. HMCTS guidance provides further details on setting up remote hearings (HMCTS telephone and video hearings during coronavirus outbreak
, 18 March 2020; last updated 30 June 2020).
The advocates can decide who should arrange the meeting and set up the telephone or video conference facilities. Free services such as Skype or Zoom should be used. Where this is not possible the cost of setting up a teleconference and dialling into the meeting are a claimable disbursement. Para 14.18 (page 94) of the Costs assessment guidance: for use with the 2018 standard civil contracts
(version 2, September 2018; last updated July 2020 to take account of COVID-19-related issues) states that two advocates’ meetings are normally expected but, in accordance with the Public Law Outline, there is no limit to the number of these fees that may be claimed, where directed by the court.
The evidence required by the LAA is an endorsed brief and a copy of the approved order listing the advocates’ meeting. The brief can be endorsed digitally without the need for a physical signature (Remote family hearings: updated ways of working, para 9). An example is set out in appendix 6 to the Civil finance electronic handbook.
The LAA confirms that advocates’ meetings may now be arranged through email rather than court order (Remote family hearings: updated ways of working, para 10). The provision of email evidence from the court and/or the judge will be treated as the same as providing the order. It also accepts retrospective recording of advocates’ meetings in orders that follow such a meeting.
An advocates’ meeting can take place on the same day as an interim hearing but it may be claimed only if the meeting takes place outside of any time period that is considered in calculating the fee for the interim hearing (Civil finance electronic handbook, para 6.4, and Costs assessment guidance, appendix 2, para 14.20, page 94).
If an advocates’ meeting leads to an agreed order, with no need for a hearing, and a self-employed advocate has undertaken at least 30 minutes of preparation for the hearing, they are entitled to claim a payment for a one-hour hearing (hearing unit 1) if the cancelled hearing was an interim hearing, or half of the final hearing fee if the cancelled hearing was a final hearing (Remote family hearings: updated ways of working, para 12).
Calculating hearing fees
The hearing time will start from the time that the telephone call/video conference was ordered by the judge (Remote family hearings: updated ways of working, para 17). There may be initial discussions that can happen on a conferencing platform that are different from the hearing itself, and this can be counted towards the hearing time. If the judge attends to ensure everyone is present, then leaves to allow pre-hearing discussions and later rejoins the hearing, that time will be counted.