This is a post by Sarah Phillimore. The Nuffield consultation is open until April 28th 2020, so please comment.
At the time of writing – April 17th – the UK is in its 3rd week of ‘lockdown’ in response to the global pandemic and efforts to reduce the spread of COVID 19. Courts have been operating remotely for a number of weeks now and some of the initial problems and panic have been ironed out. However, there are still some worries, in particular how this is impacting on lay clients. Many parents in care proceedings already face serious disadvantages in terms of ready access to technology or even a quiet and safe space in which to sit to engage in a remote hearing.
This is an issue of significance and importance – Tortoise Media organised a digital ‘ThinkIn’ for the Nuffield Family Justice Observatory.
Polly Curtis of Tortoise commented
Under lockdown there has been an 800% increase in court hearings being conducted by telephone or video call. The Nuffield Family Justice Observatory has been asked by the President of the Family Division to conduct a rapid consultation on the use of remote hearings in the family courts to inform future guidance. Join us to share your experiences: What has worked well? Do you have concerns? What improvements could be made?
What has worked well?
My experience is still quite limited; I have done a number of directions hearings where everything was more or less agreed; I haven’t yet cross examined anyone as the contested hearings lined up in my diary have fallen away. But for those hearings where the issues were limited and well known, where there wasn’t a need to put questions to a lay witness or navigate a massive bundle, it seemed to go ok. It was great not to have to travel hours to and from court for a 20 minute hearing, and the platforms I have used – Zoom and Skype for business – appeared to work reasonably well, apart from one complete and inexplicable failure of my microphone (and yes, I HAD unmuted).
Do you have concerns?
Yes. Although I haven’t yet conducted a contested hearing remotely, my experiences so far make me doubtful that its going to be as easy or as straightforward as some make out.
The significant problem in many family cases is going to be the inherent vulnerability of the lay clients. When meeting in person in court, we can talk, I can reassure, I can explain, I can see or be told immediately if my client is getting distressed or needs a break. All of this is gone with remote working. During one hearing I was taking client’s instructions via What’s App while trying to listen to the submissions of my opponents and formulate my own response. Yes, this is what happens in court hearings that are not remote – an important skill as a trial lawyer is being able to deal with client’s scribbled or whispered instructions while trying to follow the arguments of your opponent.
But there was something very draining about the remote experience that made it ten times more exhausting. That particular hearing lasted no more than 2 hours. I felt afterwards as if I had an entire day in court. I don’t yet know if this is because I am new to the experience and finding it stressful or whether a remote hearing does strip away some essential elements of good communication and that this extra effort will remain a feature of such work.
What improvements could be made?
Bizarrely, I thought I would be most concerned about technology and its availability, but my three week immersion in this new world has flagged up other difficulties I had not anticipated. From my experience what I would like to see most urgently is an end to the almost incessant flow of ‘guidance’ or comments about ‘guidance’. I appreciate that everyone is doing their best and this is for some people a way to cope with uncertainty. I also hope its an inevitable product of this brand new and very rapid change to all our circumstances.
But its oppressive, its confusing and instead of making sure that it directs people to consider what is important, I think it risks having the opposite effect – the more people expect ‘guidance’ to give them the answers, the less they tend to think about the case in front of them.
I think we need to keep first principles in mind
- The child’s welfare is paramount
- Delay should only be permitted if planned and purposeful BUT
- Hearings must be fair – and there is often a lot to unpack in that one
I am supported in this analysis by para 24 of the President’s judgment in P – see link below in Further Reading
The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.
There is often tension between all those principles But every family case offers a huge array of different circumstances which need to be weighed and considered. One final hearing of mine was adjourned for a variety of reasons, not all to do with the remoteness of the hearing – but it was clear that remoteness weighed more heavily on considerations about the parent’s need for assistance to understand and participate in the proceedings. While hearings remain remote we need to be focused much more clearly on the impact of this on the lay client and whether they can participate in a meaningful way.
The Guidance from MacDonald J (see further reading below) is detailed and impressive and begins with the reminder from the President of the Family Division that we must not lose sight of the ‘primary purpose’ of the family court – to deal with cases justly. The Guidance offers a particularly pertinent example of a Court of Protection case that the Judge, journalists and lawyers all felt went very well indeed – but the lay person had a very different experience.
It all, in the end, comes down to what we think our courts are for. If the aim is to get the slickest and most efficient system up and running, then remote working offers a lot of advantages. But I hope most would agree that process should not be elevated above the people who must suffer that process.
It will be interesting to see how the Digital Courts develop when (if) we are ever out of lockdown. I can see ways that technology can be used to great effect and one positive at least from all of this is we will have speeded up immensely our willingness to embrace remote working.
Advice on mechanics of remote hearings
Government advice on how to join remote hearings
Guidance from MacDonald J – 5th version 26 June 2020
Advocacy Guidance from the Council of the Inns of Court
Remote family hearings – guidance from 15th April 2020
Remote hearings: a gulf between lawyers and lay parties? The Transparency Project March 29th 2020
Remote Hearings Guidance Note The Transparency Project June 7th 2020
The Family Court and Covid 19: The Road Ahead Guidance from the President on June 9th 2020.
C (Children : Covid-19: Representation)  EWCA Civ 734 (10 June 2020)
Summary of case law up to end of May 2020 – Child Protection Resource
MUNCIPIO DE MARIANA & ORS v (1) BHP GROUP PLC (FORMERLY BHP BILLITON) (7) BHP GROUP LTD (Second to Sixth Defendants not party to the proceedings) (2020)
 EWHC 928 (TCC)
QBD (TCC) (Judge Eyre QC) 20/04/2020
ADJOURNMENT : CORONAVIRUS : DISPUTING THE COURT’S JURISDICTION : EXTENSIONS OF TIME : REMOTE ATTENDANCE : TECHNOLOGY
The court gave guidance on the approach to applications for an adjournment and applications for extensions of time due to the Covid-19 pandemic.
The first and seventh defendants applied for an extension of time, due to the effect of the Covid-19 pandemic, for service of evidence in respect of the claimants’ application to stay the proceedings on jurisdictional grounds.
The proceedings arose out of the collapse of a dam in Brazil which had released large quantities of toxic materials and contaminated water. There were over 200,000 claimants and the claims were made under Brazilian law. Other proceedings had been commenced in Brazil and a foundation had been established to provide compensation on a non-litigious basis. An application by the first defendant English company and the seventh defendant Australian company challenging the English court’s jurisdiction, and for the claims to be struck out or stayed, was listed to be heard in June 2020. Both sides had served expert reports with substantial exhibits. The defendants applied to extend time for service of their reply to the claimants’ evidence by five or six weeks because of the practical difficulties caused by the Covid-19 pandemic. If an extension was granted the hearing of the jurisdiction challenge would need to be vacated.
HELD: Approach to applications to adjourn hearings because of Covid-19 – The starting point was the overriding objective with the requirements that: cases were to be dealt with justly; in ways which were proportionate to the amounts involved, the importance of the case and the complexity of the issues; expeditiously and fairly. Regard was also to be had to PD 51 ZA para.4, which required the court to take into account the impact of the Covid-19 pandemic so far as compatible with the proper administration of justice. In the light of authorities since the start of the pandemic, the following principles governed whether a particular hearing should be adjourned if the case could not be heard face-to-face or whether instead there should be a remote hearing, National Bank of Kazakhstan v Bank of New York Mellon, Re Smith Technologies 26 March 2020 and One Blackfriars Ltd (In Liquidation), Re  EWHC 845 (Ch) applied.
(i) Regard was to be had to the importance of the continued administration of justice. Justice delayed was justice denied even when the delay resulted from a response to the prevailing circumstances.
(ii) There was to be a recognition of the extent to which disputes could in fact be resolved fairly by way of remote hearings.
(iii) The courts had to be prepared to hold remote hearings in circumstances where it would have been inconceivable only weeks earlier.
(iv) There was to be rigorous examination of the possibility of a remote hearing, and of the ways in which such a hearing could be achieved consistent with justice, before the court should accept that a just determination could not be achieved in such a hearing.
(v) Whether there could be a fair resolution by way of a remote hearing would be case-specific. A multiplicity of factors would come into play and the issue of whether and to what extent live evidence and cross-examination would be necessary was likely to be important in many cases. There would be cases where the court could not be satisfied that a fair resolution could be achieved by way of a remote hearing.
(see paras 16-17, 24 of judgment).
Approach to applications for extensions of time because of Covid-19 –
(i) The objective if it was achievable was to keep to existing deadlines and where that was not realistically possible to permit the minimum extension of time which was realistically practicable. The prompt administration of justice and compliance with court orders remained of great importance even in circumstances of a pandemic.
(ii) The court could expect legal professionals to make appropriate use of modern technology.
(iii) The court could expect and require from lawyers a degree of readiness to put up with inconveniences; to use imaginative and innovative methods of working; and to acquire the new skills needed for the effective use of remote technology.
(iv) The approach required of lawyers could also be expected from professional expert witnesses. However, rather different considerations were likely to apply where the persons who would need to take particular measures were private individuals falling outside those categories.
(v) The court should be willing to accept less polished evidence and other material.
(vii) However, the court had to take account of the realities of the position and while requiring lawyers and other professionals to press forward care had to be taken to avoid requiring compliance with deadlines which were not achievable even with proper effort.
(viii) The court had to have regard to the consequences of the restrictions on movement and the steps by way of working from home which had been taken to address the pandemic.
(ix) Those factors were to be considered against the general position that an extension of time which required the loss of a trial date had much more significance and would be granted much less readily than an extension of time which did not have that effect.
Application to the facts – The defendants had shown that even when all proper allowance was made for the use of technology and extra efforts, the exercise of preparing the reply evidence would take significantly longer than was provided for in the timetable. Justice required that the defendants be given an extension of time of five to six weeks. The jurisdiction challenge hearing would be relisted for July 2020 (paras 42, 48).
For the claimants: Nicholas Harrison, Jonathan McDonagh
For the defendants: Charles Gibson QC, Nicholas Sloboda, Veena Srirangam
For the claimants: SPG Law
For the defendants: Slaughter and May
LTL 21/4/2020 :  4 WLUK 180
Official – 17 pages