May 11 2020
This article intends to give an overview of the guidance from Mr Justice MacDonald, published on 17 April 2020 and titled “The Remote Access Family Court”. This information will be kept under review as new versions of this and other guidance is published.
AIMS AND OBJECTIVES
HMCTS has issued guidance determining the prioritisation of work within the family jurisdiction, the principal aim being to “keep business going safely”.
Work that must be done:
Emergency protection orders;
Interim care orders;
Secure accommodation orders;
Deprivation of liberty authorisations;
Urgent applications in private children cases;
Child abduction orders;
Domestic abuse injunctions;
Female genital mutilation and forced marriage protection orders;
Urgent applications in financial remedy cases and decrees absolute.
Work that will be done:
Gatekeeping and allocation of public law cases;
Gatekeeping and allocation of private law cases;
Processing of orders, documentation and correspondence in public law cases.
Work that the court will do its best to accommodate:
Processing of orders, documentation and correspondence in private law cases;
Adoption orders;
Divorce matters;
Financial remedy matters.
The guidance is clear that the decision whether to proceed with a remote hearing or to adjourn remains at all times a judicial one. In cases concerning children, the guidance considers that the following hearings could take place remotely: case management hearings; submission-only hearings; final hearings where the only witnesses to be called are the social worker and the Children’s Guardian; and cases where the only witnesses to be called are expert medical witnesses. The guidance highlights that “where the parents and/or other lay witnesses are to be called to give evidence, the case is unlikely to be suitable for remote hearing”. Additionally, the guidance comments that video/Skype hearings are likely to be more effective than telephone hearings.
PLATFORMS
Microsoft Teams has proven a useful platform from which to conduct pre-hearing discussions and advocates’ meetings, and all our family barristers are well-equipped to use this program to this effect.
In respect of telephone hearings, there are a number of approved telephone conference providers, those being BTMeetMe, Legal Connect, Kidatu and Arkadin. All of these service providers have recording capabilities and are largely accessible for both legal representatives, lay and professional clients.
Turning to video conference calls and hearings, Cloud Video Platform (CVP) is being used in some hearings at present and will be the Court’s preferred video hearing tool when it is rolled-out nationwide. It is a highly accessible platform from which Judges will be able to manage and conduct all cases digitally with other trial and hearing participants. Lawyers and litigants will have the option of joining the hearing via their web browser, telephone (audio only), Skype for Business or another video meeting room. CVP also has the option for party discussions to take place in the absence of the judge.
At present, the Court is currently opting to use Skype for Business. The Court sends out invitations via email, from which parties and their representatives can enter the virtual hearing by clicking the link. There is also an option, with judicial discretion, for video hearings to be arranged via Microsoft Teams in a similar way.
CHALLENGES
The guidance indicates the courts are urgently considering mechanisms through which applications can be issued remotely but also highlights that a solution has been found in respect of sealing orders, at least in some courts. Further, the guidance is clear that the use of e-bundles at remote hearings is an “essential element”.
The judiciary appears to be aware of the need for hearings to be accessible for all, so that lay clients can be involved in the hearing even when not present in the courtroom. The move to remote hearings is being publicised across HMCTS and the Judicial Office, and additionally by the FLBA.
Other challenges which have arisen relate to the use of interpreters and intermediaries: the guidance envisages these issues will be resolved when CVP is available for use. Until then, efforts are being made to secure platforms which accommodate a separate channel to aid the use of interpreters and intermediaries during remote hearings.
The guidance has taken steps to ensure that the different ways of working during the Covid-19 pandemic are recognised by the Legal Aid Agency. These include the provision of a form of wording within orders to record what would ordinarily be documented on a FAS form, as well as recognition of the different methods of working and types of hearings.
The guidance further encourages the use of Alternative Dispute Resolution (where appropriate) to ease the pressure on a reduced judicial resource. Several of our family practitioners are trained in ADR, including mediation, arbitration, Collaborative Law and Early Neutral Evaluation.
RECENT AND RELEVANT CASE LAW
The courts have determined a number of important cases in line with the guidance. It’s clear that there is a significant degree of judicial discretion in whether a remote hearing will be effective, but these offer some clarity in the recent approaches adopted by the Court.
Re P (A Child: Remote Hearing) [2020] EWFC 32
This appeal relates to public law proceedings issued in April 2019 but with extensive private law proceedings before that. It was listed for a 15 day finding of fact before a Deputy High Court Judge at the beginning of the ‘lockdown’ period. Whilst the Remote Access Family Court Guidance (referred to in this article) deals with the mechanics of remote hearings, it does not offer guidance or give direction about the circumstances in which such hearings can take place.
There is 'no one size fits all' approach. Just because a matter can be heard remotely doesn't mean it must be, and practitioners must be alive to issues of fairness to ensure all parties are on an equal footing, particularly when considering the ability of lay parties to participate in remote proceedings.
This case involved allegations of factitious illness, and where credibility is in issue, giving evidence via skype is a poor substitute for having the individual present in court. On appeal, it was determined that this case was not suitable for a remote hearing.
EK (A Child) [2020] EWFC 25
This is a judgment of Mostyn J following a contested hearing, conducted by Skype for Business, in care proceedings. It was possible to hear evidence from 5 witness, and the Court was particularly aided by the filing of an efficient e-bundle. This is an example of proceedings wherein a remote hearing proved highly successful.
Re A (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583
The Court again emphasised that “the appropriateness of proceedings with a particular form of hearing must be individually assessed…”. The decision to hold a remote hearing is a case management decision to be exercised by the tribunal hearing the matter. The Court sets out 10 factors at paragraph 9, which may influence whether or not to proceed remotely on a case by case basis:
The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
Whether the parties are legally represented;
The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
The source of any evidence that is to be adduced and assimilated by the Court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
The scope and scale of the proposed hearing. How long is the hearing expected to last?
The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
The experience and confidence of the Court and those appearing before the Court in the conduct of remote hearings using the proposed technology;
Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
Re B (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584
The Court must seek to ensure that it does not become overloaded and must make a distinction between those decisions that must be prioritised and those that must wait until proper time is available. That was the case here, where the local authority changed its care plan in the middle of a telephone hearing, and the facts of this case meant that an application for an interim care order was not urgent but was treated as if it was. In this case an adjournment would have enabled the parties and the Court to have all the necessary information. Crucial information was lacking and its absence was overlooked by the Court (an adjournment may have also allowed time for the hearing to take place by Skype and not by telephone).
Re Q [2020] EWHC 1109 (Fam)
This was an appeal against the refusal to proceed to a remote final hearing, which was upheld as the welfare of child demanded a hearing (this was in the context of long-running private law proceedings where the child had undoubtedly suffered significant emotional harm and needed to move from her mother's primary care).
The Court also dealt with the application of Re P [2020] EWFC 32, and although Re P is expressly tied to the small number of cases involving Factitious or Induced Illness, paragraph 24 in Re P is of more general, obiter, application and the judge was correct in referring to it.
CONCLUSION
This article is intended to offer a helpful snapshot of what the Family Court guidance says, as the profession adapts to these unprecedented challenges. As the current situation is constantly evolving, please refer to the President’s Guidance and HMCTS website for more information. Additionally, our barristers and clerks are more than happy to assist with any queries you may have.
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