The Remote Family Courts - Keeping Business Going Safely - Maria Scotland

Are the Family Courts Closed?

On the 16th March 2020 the Prime Minister introduced social distancing measures to keep the public safe from the COVID-19 pandemic. The issue for the justice system was how to implement these social distancing measures within the court arena. To this end the President of the Family Court issued guidance for the Family Court just 3 days later, on Thursday the 19th March 2020, setting out that with immediate effect the family justice system was to move to a default remote access basis. The courts were said to be open and operating remotely, unless there were exceptional fact-specific factors in the case that required personal attendance at a hearing in the court building. This has now been overtaken by the Prime Minister’s announcement at 8:30PM on Monday the 23rd March 2020 that we are to socially isolate ourselves and so it must be assumed that the family court system will now operate remotely without exception.

What does a remote access Family Court mean?

The objective should be to make the remote hearing as close as possible to the usual practice in court.

What is the source of power for a Family Court to sit remotely?

As of yesterday (Monday the 23rd March 2020) the Prime Minister confined the country to isolation or “lockdown” meaning that the court building should not be used for working and all parts of the court system should operate remotely. Current law already provide that sittings and any other business of the High Court may be conducted, at any place in England or Wales suggesting that there is no legal requirement for a judge of the Family Court or a judge of the Family Division of the High Court to be in the court building in order to conduct a remote hearing.

“The Remote Family Access - Version 1” (23rd March 2020):

Last night (on the 23rd March 2020) Mr Justice MacDonald published a 32-page guidance booklet on the remote family justice system. Below I have summarised the key points –

Accessing the family court remotely:

The Ministry of Justice was slowly implementing plans for the courts to move to a centralised remote access system called the ‘Cloud Video Platform’ (“CVP”) long before the pandemic and social distancing (or now isolation). It is conceded within the guidance that it is not possible before the roll out of CVP to identify a single software platform that must be used and operated in all cases. At present the judicial open build laptops come with Skype for Business and Microsoft Teams installed. However, there are multiple other platforms being used by lawyers and litigants which are not, at present, installed on judicial laptops. As such the platform used in each case needs to be agreed between the parties together with the judge in the case.

What is Skype for Business?

Skype for Business is a communication platform, part of the Microsoft Office suite. The software is offered as part of Office 365 on judicial laptops. The platform allows document sharing during a remote hearing. The platform allows the hearing to be recorded and once recording is completed it can be placed in a common cloud storage place such as OneDrive, Dropbox or iCloud. The suggested way to use the platform is for the lead legal representative to set up the Skype meeting and invite the judge into the meeting. Anyone can join a Skype for Business meeting as a guest provided that he or she is provided with the meeting URL.

Has remote accessing the court worked since its’ introduction?

We learn yesterday in Version 1 of the guide that there have been multiple successful short hearings across the family court system using telephone conferencing since the social distancing provisions of the 16th March 2020. Therefore, the general take-home message is that the family court is open for business remotely …. and has proven to work.

That’s all very well in short hearing … but how will remote access work in complex or multi-party cases?

Good question! The response is that in the days since the Prime Minister’s announcement concerning social distancing (At the time of writing it is 6 days and it feels like a lifetime doesn’t it?) the following contested final hearings or else judicial meetings, of the utmost gravity and complexity, have been undertaken in the Family Court by remote access:

1. A contested hearing in the Court of Protection before Mostyn J concerning a dispute as to whether the end of life arrangements should be made for an elderly stroke victim. There were five parties, eleven witnesses, four experts and the press, who were able to attend remotely and report it to the public. Everyone attended remotely using Skype for Business,
2. On the 20th March 2020 Williams J sitting in Leeds tried a case involving three counsel. All parties and the Judge used Skype for Business,
3. At the time of writing (on the 23rd March 2020) Sir Mark Hedley is currently to complete the remaining 10 days of a 15-day fact-finding hearing that is an urgent second re-hearing using Zoom,
4. The Lord Chief Justice of England and Wales hosted a meeting of 151 leadership judges on 19 March 2020 using Skype for Business.

Any concerns we may have about a remote family court successfully dealing with our complex matters is further assuaged in Version 1 by information gleaned from other (more technologically advanced)jurisdictions where the concept of remote hearings has been used before the COVID-19 pandemic. We learn from Mr. Justice MacDonald that the Hon. Justice Victoria Bennett AO started a remote hearing yesterday (on the 23rd March 2020) in Melbourne involving 5 counsel, 3 instructing solicitors, 2 parties and 19 witnesses, who will be linked in individually at various times for the purpose of giving evidence.  

But I/ others aren’t technologically capable of attending remotely …. what then?

The guidance yesterday concedes that there may well be cases where a remote hearing is not possible given the nature of the case and the length of the hearing combined with other factors. For these cases a long adjournment may be the only answer in the current climate.

Problems and the need for further thought and legislation:

1. Remote Issuing of Applications and Orders

As matters stand, the remote operation of the courts has centred on how to conduct hearings remotely in order to protect court users, court staff, lawyers and judges. This planning has proceeded on the assumption that at least some of the court buildings would remain open and/or that lawyers and litigants would be able to attend to issue proceedings and that court staff will be available thereafter to draw, seal and send out orders. As of last night, when the country went into so called “lock down” this assumption no longer applies. The guidance is silent in these circumstances on how proceedings will be issued remotely and how orders will be drawn and sealed (the Clerk of the Rules advises that an electronic seal for the Family Division of the High Court is still some way off). It is clear that Version 1 may very soon need to be updated with Version 2.. since it is clear that the remote court is going to run into problems.

2. E-Bundles

The ability of the judge and the parties to access an electronic bundle for the hearing comprises an essential element of an effective remote hearing. The wholesale move to remote hearings means the transition to using electronic bundles is a matter of extreme urgency. Not least because the use of a paper bundle is not only incompatible with a remote hearing as a matter of logistics, but also presents a potential avenue of transmission of the virus. As e-bundles become almost mandatory, the need for judges to have access to a reliable software programme has also become acute. The Acrobat Reader that comes pre-installed on judicial laptops is sufficient for this purpose, however Acrobat Reader is limited in its functionality, particularly with respect to bookmarking. For financial remedies work, Mostyn J has issued Financial Remedies Courts – e-bundles protocol dated 3 March 2020 which provides for the use of e-bundles in financial remedies cases.

3. Witnesses

There will be an increased need for the judge to administer the oath or take the affirmation from parties and witnesses if a member of court staff is not also linked to the remote hearing. Mostyn J uses a short form by addressing the witness thus: “do you swear or affirm to tell the truth, the whole truth and nothing but the truth?” There should, for obvious reasons, be no requirement from the court at present to touch any Holy Book.

4. Recording

Any hearing must be recorded in the same way that court hearings were recorded before these urgent measures. A number of the remote communications platforms, including BT MeetMe and other teleconferencing facilities, Skype for Business and Zoom permit remote hearings to be recorded (although Mostyn J has identified a problem with file corruption in Skype for Business that necessitates recording be re- started every 30 minutes to avoid data corruption). Greater challenges lie in the storage of the recordings that result from remote hearings. First their file size (storage) and the challenge of ensuring that all recordings are eventually held centrally. Due to closures of the court the risk of recordings being mislaid or corrupted is high. Urgent consideration needs to be given to the manner in which recordings are to be stored centrally and a record kept of the recordings stored.

5. Use of Interpreters

Interpreters ordinarily sit next to a litigant and provide direct interpretation during the course of the hearing. This is at present both unrealistic where a remote hearing is taking place. There is an urgent need to identify a solution to the problem of ensuring simultaneous translation during the course of a remote hearing. The most likely solution is one based on a communications platform that not only allows multiple parties to attend the hearing remotely but that also permits multiple audio channels for a single user so that the interpretation does not interrupt the course of the hearing.

6. Litigants in Person

• In any case in which neither party has a solicitor, if a remote hearing is to be held it will need to be set up by the court. 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.
• There may be litigants in person who lack access to remote access platforms. In these circumstances, if held, it is likely that significant numbers of private law hearings will have to take place by means of telephone conferencing.

7. Recording of proceedings (Security):

The primary security concern in respect of remote hearings centres on the hearing unauthorised recordings being made by a litigant or as a result of malicious third-party hacking. This 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 (a) 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 (b) in any event to record or transmit material gained through participation through a live link. It is to be anticipated that these provisions will become law. Whilst security vulnerabilities remain it is felt that the risks outweigh the need to nonetheless keep the family justice system operational.

8. Legal Aid

The Family Bar and solicitors are understandably concerned about the effect on advocacy fees under the FAS scheme. In the ordinary course of events, hearings attended at court routinely include a requirement to attend an hour before for pre-hearing discussions. This is reflected in the advocacy fee payable for the hearing. Without such a requirement the attendance time is the hearing time. If the hearing last less than one hour then the fee is significantly reduced. With respect to the use of remote hearings, where the hearings take place by telephone or video link there is no requirement to attend at court beforehand. The following is an amalgam of a number of suggestions received so far:

• “For the purposes of the hearing the parties and/or their respective legal representatives are required by the court to attend, remotely if necessary, a pre-hearing discussion no later than 1 hour before the hearing time for the purpose of discussions/negotiations to enable an effective commencement of the remote hearing at the allotted time.”

• The FLBA has indicated that FAS judges certification forms are not required for remote hearings and, accordingly, FAS forms need not to be sent to judges at this time The FLBA have suggested that the order made by the court records the name of the advocate and the time the hearing is listed (subject to the matters set out in the paragraph above) as FAS ‘bolt on’ payments can be self-certified.

Maria Scotland is the joint head of the Family Team at 5SAH and 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. 

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