The remote family justice system by Mr Justice MacDonald - Version 3 - A summary from Maria Scotland

On Friday the 3^rd April 2020 Mr Justice MacDonald published Version 3 of his guidance on the remote family justice system. I have summarised the new key points in Version 3 below:

Open, Staffed and Suspended Family Courts

From Monday the 30^th March 2020 all courts are categorised as ‘open’ (or prioritised), ‘staffed’ or ‘suspended’ click here for the guidance.

• Open courts will be open for the judge, the public and professions to gain physical access.
• Staffed courts are still attended by staff and judges but not open to the public. Judges at staffed courts can only conduct remote hearings.
• Suspended courts have no staff or judges.

Use of Remote Hearings in the Family Court to Date

Resolution have published a report indicating that the majority of remote hearings to date have been Directions, Case Management or other interim hearings; with 40% being set up by the court and 36% by a represented applicant using the following platforms:

• 87% by telephone,
• 29% by Skype and
• 16% by Zoom.

Litigants in Person and issues of their Access to Remote Hearings

The Family Justice system’s primary purpose is to deal with cases justly ensuring that parties are ‘on an equal footing’. There are concerns of social and economic inequality with some lay clients being unable to properly participate in a remote hearing. The following guidance is given in Version 3:

1. Platforms should be accessible to/by the lay clients, even where HMCTS cannot provide technical support to the court system.
2. A number of public law hearings will have to take place by teleconferencing limiting the types of hearing that can be accomplished remotely.
3. It is also not appropriate for courts to stipulate ‘advocates only’ remote hearings.
4. A judge should not send a Skype or Zoom invitation to a litigant in person from their judicial email. It must come from his or her clerk or the court staff. If this is not possible, then the hearing will likely have to take place using teleconferencing facilities.
5. Where both parties are litigants in person the following principles should ideally apply:
   1. A judge’s clerk/ a member of court staff should be present throughout the hearing.
   2. The clerk/ member of court staff should initiate and monitors the remote hearing.
   3. The clerk/ member of court staff must ensure that the remote hearing is recorded.

Assisting Lay Parties to Access Remote Hearings

Although some litigants in person will be ‘tech-savvy’, many will not. Some will be illiterate, find text or screen-based communication difficult, or find audio-only communication difficult (for various reasons such as a disability) and may have language or communication difficulties. There are also those litigants in person who will have difficulties in achieving any access to a remote hearing where they are for instance homeless, do not have a mobile phone or landline, do not have a Wi-Fi connection, do not have sufficient “credit” on their phone, continuing to live in the same household as another party, particularly where there are allegations of domestic abuse. The following solutions have been suggested by the FLBA and the ALC:

1. If a party has a Pay as You Go mobile phone the hearing provider should dial them.
2. Audio only connections should be where a party is unable to join a video connection.
3. Plain English guides should be used to assist the litigant in person to connect to a video conference. Litigants in person could also be offered a ‘dry run’ test connection 24 hours prior to any hearing.
4. Subject to the strict social distancing requirements arrangements could be made for a litigant to attend an ‘open’ court in order to access the remote hearing.
5. Arrangements could also be made by local authorities to provide a space where parents in care proceedings can access remote hearings.
6. A litigant in person should be afforded the support of a McKenzie friend, even if the McKenzie friend can’t be in the same location as the litigant in person.
7. Clear ground rules should be set at the start of any hearing. For example, on turn-taking, muting, privacy, alerting the judge if any technical or sound difficulties and in particular making clear that there is a prohibition on recording or broadcasting, which may not be obvious to litigants and which carries a criminal sanction.
8. The judges should regularly ‘check-in’ with a litigant in person.
9. Regular breaks should be offered to all participants and particularly litigants in person.
10. The court should be sympathetic to requests for additional time in a remote hearing to permit solicitors and counsel to speak with lay clients and to take instructions.
11. Finally, in public law cases where a child is a party the local authority must ensure that the child has the means of accessing the hearing remotely (for example in a DOLS application).

Work behind the scenes to enable better Access to Remote Hearings

HMCTS are working hard on ensuring better access to remote hearings, including:

1. Increasing the volume of teleconferences using BT Meet Me system
2. Ensuring each courtroom has a BT Meet Me account,
3. Removing the firewalls in the MOJ system to permit use of Skype for Business,
4. Increasing the capacity of concurrent hearings (with the aim of 500 concurrent hearings),
5. Supporting videoconferencing in court and tribunal hearings,
6. Providing staff with guidance and developing guidance for the judiciary on BT MeetMe and Skype for Business,
7. Establishing an Audio-Video Taskforce,
8. Making two dedicated support staff available for remote High Court and Court of Appeal hearings from the week commencing 30 March 2020,

Guidance for how to behave/ conduct the Remote Hearing

Remote hearings remain court hearings. The solemnity of the occasion should be observed as closely as it is in a courtroom. Guidance given includes:

1. Advocates should dress as if attending court but are not required to robe.
2. The background and lighting should be appropriate.
3. Participants must ensure that they will not be interrupted.
4. Participants should not move away from the screen without permission.
5. The usual restrictions on eating and drinking in a Courtroom apply.
6. All reasonable steps must be taken to preserve the confidentiality of the proceedings. The use of earphones is permitted and encouraged if this will assist in preserving confidentiality.
7. The judiciary and other advocates should be addressed as if they were in a physical courtroom. It is not necessary to stand.
8. Anybody attending the remote hearing should ensure they have good connection/signal. The minimum recommended bandwidth is 1.5 MBPS.
9. All participants should join the remote hearing prior to the Judge.
10. The Judge’s camera and microphone should remain on at all times.
11. Participants should have their microphones muted unless addressing the Judge
12. Participants should leave their cameras turned on at all times.
13. The Court will identify the participants at the start of the remote hearing.
14. The Court will give any necessary warnings including warnings to all parties regarding recording and confidentiality.
15. When a witness is giving evidence they must keep their camera and microphone on.
16. Time should be provided for advocates to take instructions during the course of a hearing.

Children at home and the Remote Family Hearing (Concerns)

The ADJ, FLBA and ALC have each raised concerned regarding children being present at, or able to hear, the hearings. Where it is simply not possible to insulate children from hearing or witnessing inappropriate matters, consideration will have to be given to adjourning the hearing.

E-bundles

The use of e-bundles can create difficulties for litigants in person and for parties who are remote from their lawyers. These difficulties may be mitigated by the following steps:

1. It may not be necessary at an interim-hearings for a party who is represented to have access to the e-bundle.
2. Some video-conferencing platforms enable a ‘screen’ or documents to be shared to permit access to the e-bundle.
3. Specific documents may be posted to a party by their representatives or the local authority.
4. In exceptional circumstances it may be possible for a party to attend an ‘open’ court building in order to participate in the remote hearing and have access to the e-bundle.

Recording Proceedings

Pending a central repository of recordings held by HMCTS the judge should direct either (a) that the legal representative who hosted the meeting should store the audio recording in a secure GDPR compliant data storage facility, to be transferred to HMCTS when a storage facility becomes available or (b) that the legal representative is to send a copy for storage by the local court/judge and thereafter dispose of their own copy. Where the judge gives an ex tempore judgment, the relevant file or link to the recording can be made available to the transcribers, just as the digital file from a court recording is made available for transcription.

Orders (Following a Remote Hearing)

Orders are being sent out by the court to parties in PDF format using Adobe Acrobat, which allows a password protected restriction to be placed on further editing PDF documents before distribution.

Signing Court Applications (in Remote settings)

On the 27^th March 2020 the President of the Family Division made clear that from now on ‘wet’ signatures are not a requirement for applications, consent orders, etc and such documents are not to be rejected by courts on that basis. There is no need for orders to bear a manual signature or even a facsimile of a manuscript one.

Summary

The current crisis will pass. Planning for the post-Covid-19 period needs to begin now to consider the cases that are not being heard remotely/ being adjourned and stood out by the courts. Each court centre is being asked to keep a record of each case that is being adjourned so that they are able to plan how to hear these cases when the crisis is over.

Maria Scotland is the joint head of the Family Team at 5SAH and she practices exclusively in family law with a specialism in high end/ big money financial remedy applications and (private law) children work. She accepts instructions to act through a solicitor or directly from members of the public on a Direct Access basis.