Coronavirus Act Explained for Advocates

Children and Families Act (SEND provision)

The changes proposed to the Children and Families Act are not yet in force. When they do come into force, the main changes are that the duty under s42 to secure provision will be amended to merely require that ‘reasonable endeavours’ are used. The duty to complete reviews of Education, Health and Care Plans (EHCP) will be suspended and the duty under s42 to admit a young person to an educational placement named in Section I of the EHCP will also be suspended.

These changes are to be put in place for one month before being reviewed.

Coronavirus and the Court

As the majority of Advocates will now be aware, all future hearings are now to be heard remotely unless there is a genuine urgency and it’s not possible to conduct a remote hearing. This follows the substantial Remote Access to The Court of Protection Guidance issued by Hayden J on 31 March 2020.

There is no suggested single form of technology to be used for the remote hearings. These can take place by Skype, Zoom or any other platform that is deemed appropriate. Usually the Judge will set out their preference for interruptions at the start of the hearing and all attendees who are not speaking should place themselves on mute. If you are joining a remote hearing it is important that you test your video and audio needs beforehand to make sure it works properly.

Attendance of P at remote hearings has been given lengthy consideration. The conclusion is that if P lacks capacity and is represented by a litigation friend, there is generally no need for attendance of P at remote hearing. That being said, the parties are encouraged to be imaginative about bringing P into the process through appropriate mediums.

Ultimately, the question of P’s attendance at remote hearings is matter for P’s legal representative and/or their litigation friend. If a judicial meeting with P is necessary, remote conferencing technology should be used to facilitate that meeting. The meeting should be recorded and made available to the other parties.

Suggested Ways of Communicating

Each person is different and consideration must be given to their specific needs when deciding how best to communicate remotely. For some vulnerable people, speaking over a telephone or video conference would be appropriate and so these methods of communication should be used wherever possible.

Another option to consider is recording a video which could then be sent to the placement to be shown to P. This is something which seems to work well with those who are non-verbal or have very limited verbal communication. The obvious limitation of this method is that they can’t respond directly to you but hopefully are comforted knowing that progress is still being made and they have not been forgotten.

Writing a letter to P may also be an appropriate method for obtaining their wishes and feelings. Most people will like to receive a letter to know that things are still progressing. For those who are non-verbal or have limited verbal communication they may be better able to respond to a letter than they would to engage with a telephone or video call.

Providing a letter also makes sure that people who have issues with memory can be reminded of the letter by their carers and reconsider the information that has been given. The letter could be sent to the care home under cover of an email, then it can be printed and given to P. If they can respond to your letter, this will provide evidence of their clear wishes and feelings.

We are interested in hearing from Advocates who have been successfully using any alternative methods of communication with their clients. If you have any examples of this please contact us.