The new ‘normal’? - Remote hearings and technology

The Transparency Project published a number of articles recently questioning the fairness of conducting Court business remotely. The main criticisms levelled were the loss of transparency and the inability of lay parties to effectively participate in these hearings because of their lack of access to technology tools. Both these criticisms are valid concerns which need to be properly addressed in the weeks and months ahead.

What should be clear to all of us by now is that the Covid-19 crisis is likely to be with us beyond the 12 weeks initially suggested. This underlines the urgent need for us as practitioners to get to grips with the varying platforms on which hearings can be enabled and to formulate a framework which enables lay parties to fully participate in proceedings during our temporary new ‘normal’.

Anecdotally, some have been concerned on behalf of lay parties about their ability to follow proceedings conducted via remote platforms. It is however a truism that many lay parties under conventional circumstances are not able to follow proceedings for a myriad of reasons. Most typically this is because the stress of being in Court, where others are making decisions that will forever affect their family life, is so overwhelming that processing what is happening around them is virtually impossible. A greater use of our soft skills to spend additional time explaining what will happen before and after hearings are the essential bridge to understanding for our lay clients. 

The President of the Family Division provided a short guidance note following the onset of lockdown. That guidance has been expanded upon in version 3 of Mr Justice MacDonald’s 49 page document ‘The Remote Access Family Court’ which provides a comprehensive discourse on the framework in which these remote hearings shall proceed, the pros and cons of the platforms in use currently, the responsibility of the Court for facilitating the lay parties’ participation, and funding. The full document can be downloaded by clicking here.

The highlights are as follows:-

1. Permission from the Court is required for the hearing to be dealt with remotely unless the Court directs it of its own motion;
2. A preliminary hearing to identify what platform for communication is to be used for the substantive hearing is required;
3. It is usually the responsibility of the applicant to liaise with the Court to arrange remote hearings;
4. Where video hearings are not possible, the hearing will take place by telephone as a default position;
5. The lead party must provide the other parties with the dial in details or arrangements for the hearing no later than 24 hours before the remote hearing takes place;
6. Early and careful consideration must be given to how to involve an intermediary or interpreter in the remote hearing;
7. It is an offence under ss. 53 of the Coronavirus Act 2020 to (a) 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) to record or transmit material gained through participation through a live link.
8. Signed FAS Forms are no longer required provided that the Order reflects the times that the parties participated in pre-hearing discussions and the hearing.  There is provision for an additional hour to be added to the end of the hearing time to enable the parties to agree the Order.

Click here to download the rest of the briefing.