The social distancing measures and the stay at home rules which have been implemented in response to the Covid-19 crisis pose a unique challenge to public services which traditionally operate on a face to face basis.
Nevertheless, Sir Andrew Mcfarlane (President of the Family Division) has made clear that the aim is to ”keep business going safely” in national guidance published on the 19th March:
”There is a strong public interest in the Family Justice System continuing to function as normally as possible despite the present pandemic. At the same time, in accordance with government guidance, there is a need for all reasonable and sensible precautions to be taken to prevent infection and, in particular, to avoid non-essential personal contact.”
Remote hearing/court-based hearing?
The default position should be that, for the time being, all Family Court hearings should be undertaken remotely either via email, telephone or video.
Where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place.
The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice. In considering the suitability of video/audio, judges will consider issues such as the nature of the matters at stake during the hearing; any issues the use of video/audio technology may present for participants in the hearing, having regard to individuals’ needs; and any issues around public access to or participation in the hearing.
Please tell the court or tribunal if there are any circumstances about yourself or your case which may affect or impair your ability to participate effectively in an audio or video hearing. This will inform the judiciary’s decision.
Which technology can be used in order to participate in a remote hearing?
Remote hearings may be conducted using the following facilities as appropriate to the individual case:
- By way of an email exchange between the court and the parties;
- By way of telephone using conference calling facilities;
- By way of the court’s video-link system, if available;
- The use of the Skype for Business App installed on judicial laptops;
- Any other appropriate means of remote communication, for example BT MeetMe, Facetime and Zoom.
- Cloud Video Platform (CVP)
Will I be informed if the hearing is to take place remotely?
In the event that both parties do not have a solicitor, the court will be responsible for arranging the remote hearing. If the court buildings are shut then either a member of staff working remotely or the judge will be required to arrange the remote hearing, the latter involving administrative contact between the judge and the parties if it is to be achieved.
If the applicant has legal representation, the applicant will be responsible for arranging the remote hearing. If the respondent has legal representation and the applicant does not, the respondent will be responsible for arranging the remote hearing.
Rules regarding confidentiality
A remote hearing will still have to be confidential. Therefore, a party must ensure that they are attending the hearing in private. It would not be appropriate to attend the hearing in a public space where there is the risk that the conversation can be overheard.
There is also the added security risk of the unauthorised recording of remote family court hearings. This primary security risk has been recognised in the Coronavirus Bill. Section 53 of the Bill provides for temporary modifications of the Courts Act 2003 which make it an offence:
- to record a broadcast from the court that has been directed for the purpose of enabling members of the public to see and hear the proceedings and
- in any event to record or transmit material gained through participation through a live link.
The judge or magistrates must use their best endeavours to ensure that only those who would be allowed into the court room for an oral hearing are privy to the remote hearing and that all parties understand that the system used by the court will record the proceedings and that no other recording is to be made by any of the parties.
Even where a case is urgent, it should be possible for arrangements to be made for it to be conducted remotely. The default position should be that the hearing is conducted remotely. Where a case is genuinely urgent, and it is not possible to conduct a remote hearing and there is a need for pressing issues to be determined, then the court should endeavour to conduct a face-to-face hearing in circumstances (in terms of the physical arrangement of the court room and in the waiting area) which minimise the opportunity for infection.