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The COVID-19 pandemic has caused nationwide disruption and the Family Court is not alone in having experienced this. It has had to make radical changes, with little notice, to the way in which its business is conducted.
Fortunately, we are lucky to have a multitude of constructive, pro-active and creative minds working within the Family Justice System. There may be no ideal way to conduct business in these testing circumstances however there is consensus across the board that access to family justice must continue. It is incumbent upon those brilliant minds to find workable solutions to keep the system alive, whilst navigating the ever changing guidance and restrictions from Government.
In pursuit of those workarounds, the President of the Family Division published guidance for the conduct of remote hearings in the Family Court on 19 March 2020. That was followed by a further paper published by HHJ MacDonald on 23 March 2020, examining the successes and challenges encountered by the Family Court as it seeks to move forward in this climate.
Attached as an appendix to the latter document is a Protocol for Remote Hearings in the Family Court. This blog is intended to summarise that protocol and HHJ MacDonald’s narrative that accompanies it.
A caveat: this article is a long one. However, it is not intended to be an exhaustive guide: I would refer you always to the President and HHJ MacDonald’s guidance respectively first and foremost.
For completeness, HHJ MacDonald included a Protocol also for hearings that are to take place in person in the Court building, and how they are to be conducted to ensure participants are kept as safe as possible. That protocol is not examined in this blog. It is clear that the judiciary is under strong guidance to conduct any and all possible hearings remotely. It is also not clear whether it is possible for hearings to take place in person considering the latest “lockdown” restrictions announced by the government. This is a fast-moving situation, however and should be kept under constant review.
Protocol for Remote Hearings in the Family Court
1) Proper preparation and planning, in good time before the hearing, is essential. As per the President’s sample draft order, there must be an Advocates Meeting 48 hours before the remote hearing which should be attended by the advocates intended to appear at the substantive hearing. It is incumbent upon solicitors and/or advocates to try to narrow the issues as much as possible and take early instructions to ensure this is possible.
2) There is no intention by the Court to prescribe any one particular platform. The Court is already familiar with telephone conferencing facilities such as BT MeetMe and we know that these work. There are also a “smorgasbord” of video conferencing platforms which feasibly could work. These include Skype for Business and Microsoft Teams (both installed on most, but not all, judicial laptops, with the benefit of a licence for their use.) They also include Zoom, Lifesize and others, each with their own advantages and disadvantages. A comprehensive comparison is not included but is given within the narrative, and can be a useful cross-reference guide to determine which would be the best fit. It is to be noted that the judiciary do not have access to a licence to some platforms (for example, the workable version of Zoom, which is not free), but this can be worked around on the basis that one of the parties with a subscription can set up the video hearing and invite any non-subscribing parties, including the judge, to the hearing.
3) In order to support a video hearing, all of the participants will need an internet speed sufficient to support it. The minimum bandwidth is 1.5 MBPS. If one party has poor access to internet or indeed does not have access to a device that can support video conferencing applications, remote hearings can be held by telephone call.
4) Permission of the Court is still required to deal with hearings remotely. That is the case in accordance with the normal Rules and remains the case now. Where the Court, either by its own motion or by application by one or all of the parties, considers that a hearing can be dealt with remotely, a preliminary hearing is held (most likely by telephone) to identify the appropriate platform, taking into account considerations at points (2) and (3) above.
5) At the preliminary hearing, the Court will consider who should be the “lead party”. It is the responsibility of the lead party to liaise with the Court in advance of the remote hearing to deal with technical issues. It may be that the lead party will need to set up the remote hearing with a view to inviting the judge to join it if it is a platform for which the judiciary does not have a licence or subscription. This includes whether the hearing is to take place by telephone. The lead hearing will be the applicant or, where unrepresented, the first represented party. In a case in which neither party is represented, the Court will need to make these arrangements.
6) Responsibility for recording video hearings falls upon the party who is to it (whether the lead party or otherwise). At the conclusion of the hearing or at such points throughout the hearing as necessary, recording will be uploaded to cloud based storage. The Judge will settle arrangements for how the recording files are to be transmitted and stored centrally by the Court.
7) Electronic bundles are essential. They must be agreed between the parties wherever possible. They must be filed with the Court on ‘CE-File’ where that is available and, if not, by another link to a Cloud-based document sharing platform, such as DropBox or OneDrive. Electronic bundles must be in a searchable PDF document, ideally in a single file, and paginated electronically with reference to both page and section number. Each individual document and section must be bookmarked (by which the writer understands to mean hyperlinked via an electronic index, but it is not entirely clear). They should only contain essential documents for the remote hearing.
8) A culture change is necessary when it comes to listings. Hearings will need to be listed at the specific time they are due to take place and it is incumbent upon all involved to endeavour to ensure that they are kept within time estimates.
9) A list of documents to which a witness may be referred should be produced if it is possible. Thought should be given to whether this should be collated into a separate e-bundle.
10) It is most convenient for Judges to guide witnesses in oath or affirmation taking and there is no expectation to hold a Holy Book given the concerns about virus transmission. Witnesses must, however, be in a secure room, alone, with the doors closed and with measures taken to prevent interruptions and disruptions.
11) If interpreters or intermediaries are required, they can join the video hearing but there are some practical difficulties that HHJ MacDonald recommends to be resolved; some but not all platforms will allow multiple audio channels for a particular party which means that interpreting or intermediary discussions can take place without disrupting the rest of the attendees. Similar rules apply for transparency or press attendance, where it is appropriate. This can continue subject to their involvement in the video conference.
12) It is an offence to record a remote hearing directed to be broadcast live for transparency purposes or otherwise to record or transmit material obtained from remote access to a hearing.
13) Orders should be drafted by the clerk, Court officer or judge but the wording of the order should be discussed before the remote hearing is terminated.
HHJ MacDonald’s starting point is that remote access hearings work. It worked Mostyn J on week commencing 16 March 2020 shortly after social distancing announcement was made by the Prime Minister. Using Skype for Business and sitting in the Court of Protection, Mostyn J successfully conducted a 3 day final hearing with 5 parties and 11 witnesses. Since social distancing guidance was announced, it has worked too for a number of other judges, in other Courts and even in other jurisdictions. This is anecdotal evidence for sure but it is the best we can do at a time when that is what the country must aim for.
However, it is not seamless. Much of HHJ MacDonald’s publication is intended to highlight the very many challenges facing the Court in this regard. In particular, urgent thought is needed to determine how the Court office will operate with its administrative duties and the issuing of applications.
The technology available to the Court is not ideal. That is the case for telephone and video platforms. HHJ MacDonald goes some way to describe the pros and cons of some of the leading software options however concedes this will often fall into personal preference or suitability for a particular case. A preference will not be prescribed and rigid bias towards any one platform should be avoided. It is also the case, however, for the viewing software for e-Bundles. On either front, there are accessibility challenges for some software on certain judicial laptops. Both practitioners working in family law and the Court itself are likely to need to give urgent thought to the technology in use, to ensure the smooth running of each matter. The Court is set to introduce, in due course, its own video conferencing facility. However, until then, we are largely having to improvise and we must all work together on this. How the hearing is to be recorded and stored will need to be given careful thought: anecdotally, Skype for Business required Mostyn J to reset the recording every 30 minutes in order to avoid the file becoming corrupted.
A particular challenge highlighted by HHJ MacDonald is accessibility. In order to work well, a video conference requires all participants to have a minimum bandwidth speed of 1.5mbps “in both directions”. Linked to that, as a practitioner, a particular anxiety is affordability. Not everybody who needs to access to justice in the Family Court will be in a position to afford WiFi. For the purposes of this blog, I have tested internet speeds on 4G on two mobile devices with two major mobile networks: speeds were fluctuating and in some cases were below the requirements. Further not everyone is fortunate enough to be able to afford a device that can support video conferencing. Not every case involving such litigants will be suitable to be heard by telephone (or indeed even remotely at all). As government guidance only gets stricter, it is difficult to foresee how such hearings could be heard in person. This creates the concern that some people may find themselves essentially unable to access the Family Court for financial reasons. That is a difficult pill to swallow for all of us in the Family Court arena and it is something that everyone must strive to avoid.
Another key debate is security. There have long been security concerns about the “off the shelf” platforms being discussed and whether they are hacker-proof. Those security concerns subsist. COVID-19 has essentially forced the Court into a position of having to swallow those concerns. HHJ MacDonald’s confusion is that the pressing need to maintain Family Court business as much as possible in effect outweighs those reservations. As a Family Lawyer and no specialist in cyber-security, I will not comment on this point. But I will support the sentiment:
The Family Court deals with such important matters and we at JMW are committed to ensuring that, wherever possible, our clients can still access justice. That is the case even when it means we need to think creatively to solve the unique challenges arising almost daily.
HHJ MacDonald’s Guidance and the aforementioned Protocol can be found here.
In the event you have any questions, please do not hesitate to contact any member of the JMW Family Team.