The Remote Access Family Court – Version 3 – Summarised by Anaum Riaz

Mr Justice MacDonald has released an updated version of ‘The Remote Access Family Court’ on 3rd April 2020. The guidance can be found here.

The original guidance together with first update dated 25th March 2020 is summarised here.

The main updates are as follows:

– On 27 March 2020, Resolution published a survey designed to take an early ‘snapshot’ of the use of remote hearings in family proceedings in this jurisdiction since that time. The snapshot indicates that remote hearings have taken place in courts on all circuits, that the majority of remote hearings (86.67%) have taken place by telephone, followed by Skype (28.89%) and Zoom (15.56%), that the majority of remote hearings have been set up either by the court (40.00%) or a represented applicant (35.56%) and that the majority of hearings concerned directions or case management hearings and other interim hearings. The majority of those responding to the survey (69.57%) had not felt under pressure to attend court physically.

– The primary purpose as a Family Justice system is to enable courts to deal with cases justly, having regard to the welfare issues involved (FPR 2010, r 1.1 ‘the overriding objective’), part of which is to ensure that parties are ‘on an equal footing’ (FPR 2010, r 1.2). Within this context, the use of remote hearings must not be at the expense of a fair and just process. Further, remote hearings remain court hearings and the solemnity of the occasion should be observed as closely as it is in a courtroom. Within this context, and insofar as is possible, the decorum of a court hearing should be maintained commensurate with the gravity and seriousness of the issues being decided in a formal legal arena. Steps should be taken to avoid matters that detract from the ordinary gravitas of a court hearing.

Requirement for Wet Signatures?

– On 27 March 2020 the President of the Family Division made clear that the rules do not indicate that a ‘wet’ signature is a procedural requirement and that, within this context, 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. Indeed, the authorities indicate that a printed name constitutes a valid electronic signature Bassano v Toft [2014] EWHC 377 [39]-[41] and Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd [2012] 2 All ER (Comm) 978 at [32]. There is no need for orders to bear a manual signature or even a facsimile of a manuscript one.

Technological Guides

– The FLBA has now produced a series of concise technical guides for using Skype for Business, Zoom, Microsoft Teams and Lifesize following successful tests of the various platforms with the assistance of a number of judges both at court and at home. Step-by-step guidance for

Skype for Business is now on both the eJudiciary and judicial intranet sites. HMCTS has also issued guidance on these technical topics that can be found at https://intranet.justice.gov.uk/abouthmcts/operations-directorate/business-continuity/covid-19/guidance-on-using-telephony-andvideo-technology-during-the-coronavirus-outbreak/.

Bundles

– 5.9.1 The use of e-bundles can create difficulties for litigants in person and for parties who are remote from their lawyers being able to access the bundle during remote hearings. These difficulties may be mitigated by the following steps suggested by the FLBA and ALC:

(a) For interim hearings at which that party is represented and is not giving evidence, it may be unnecessary for that party to have access to the bundle.

(b) Some video-conferencing platforms enable a ‘screen’ or documents to be shared with one or more of the other participants, and this may be a method by which a party can access the bundle when required, particularly if the platform being used has a breakout room feature that enables instructions to be taken, and enables documents shown to clients, within those breakout rooms.

(c) Specific documents (such as a party’s statements where they are to give evidence) may, where appropriate, be posted to that party by their representatives or the local authority.

(d) In exceptional circumstances, where no other option is available and the public health guidance permits it, it may be possible for a party to attend an ‘open’ court building or other facility in order to participate in the remote hearing while having access to the bundle.

Access for Parties and Litigants in Person

– Participation of the lay parties continues to be a fundamental element of a fair trial where a hearing is held remotely. It is not appropriate for courts to stipulate ‘advocate only’ remote hearings as a means of dealing with the logical and practical difficulties caused by the current public health crisis.

– If neither party has a solicitor, if a remote hearing is to be held it will need to be set up by the court.

– Some parties attending from a different location to their lawyers and litigants in person are likely to face difficulties in achieving any access to a remote hearing including where a party or litigant in person is homeless, does not have a mobile phone or landline, does not have a Wi-Fi connection, or does not have sufficient ‘credit’ on their phone. Further difficulties arise where a party continues to share a household as another party, particularly where there are allegations of domestic abuse.

(a) While a party who has a Pay as You Go mobile phone would incur a cost, and therefore require “credit”, to telephone into any hearing, they would not incur a cost, and therefore not require “credit”, if the hearing provider dials out to them.

(b) Where video communication platforms enable an audio only connection in addition to video connection, a decision can be made on a case by case basis whether a party may join on an audio only basis if adequate for the needs of a party who is unable to join without a video connection.

(c) Courts can produce plain English guides to assist the litigant in person with basic literacy to connect to a video conference by explaining that they will be sent an invitation with a link or login details, and that they need to follow the link and enter any code 10 minutes before the start of the hearing. Court DSOs could support litigants in person to connect. Litigants in person could also be offered an opportunity for a ‘dry run’ test connection by the hearing host, 24 hours prior to any hearing wherever possible.

(d) There may be some hearings where technological challenges mean that the only way to involve a litigant in person in an otherwise remote hearing is to provide a safe space for them to do so. Subject to the strict social distancing requirements, arrangements could be made for a litigant to attend an ‘open’ court in order to participate in a remote hearing, enabling a party to access the remote hearing without the need to convene a fully face-to-face hearing.

(e) Subject to the strict social distancing requirements, arrangements could be made by local authorities to provide a space where parents in care proceedings can access hearings remotely, whether by providing access at that location to the necessary equipment, or simply by permitting access to Wi-Fi. As noted above, Dorset County Council has taken steps to adopt this approach.

(f) There is no reason in principle why a litigant in person who would otherwise be permitted the support of a McKenzie friend should not be afforded the support of a McKenzie friend when the hearing is conducted remotely, even if the McKenzie friend can’t be in the same location as the litigant in person. In the usual way, a McKenzie friend can be asked for a verbal confirmation they understand and will abide by the McKenzie Friend guidance, having been sent and read that guidance

– When listing cases the court should be sympathetic to requests for additional time to be built into a remote hearing to permit solicitors and counsel to speak with lay clients ‘at court’ and to requests for breaks during the hearing to take instructions. Courts should likewise give consideration to how case management timetables can be adapted in respect of filing of evidence and listing to ensure that solicitors have adequate time for case preparation.

– in those cases where a child who is joined as a party to proceedings, is separately represented and will need to access a remote hearing, in public law cases the child may be facilitated to attend a remote hearing by the local authority to ensuring that the child has the means of accessing the hearing remotely from the place in which they are accommodated and in private (for example in a DOLS application). The situation in private law cases is much more difficult and this will need to be addressed on a case-by-case basis, accepting that in some cases the attendance of the child will not be practicable.

Ongoing difficulties identified in the guidance remain with regard to use of interpreters and intermediaries. Whilst the provider of interpreting services to HMCTS has its own Video Remote Interpreting platform that is available for use, HMCTS firewalls are currently preventing access.

Further, the interpretation provider has indicated that there is no way for individual interpreter’s details to be provided in order for them to be ‘dialled into’ or invited to remote hearing being conducted on an alternative platform. The guidance identifies an urgent need for HMCTS to ensure that CVP is further developed to accommodate a separate channel feature to aid the use of interpreters during remote hearings by parties for whom English is a second language.

FPR Part 3A will continue to apply to remote hearings. Whilst intermediary companies have stated they are prepared to work remotely, Communicourt has indicated that as at 30 March 2020, it has postponed all intermediary assessments although it continues to process referrals. Its intermediaries are no longer attending hearings physically and attendance of intermediaries for remote hearings presents the same challenges as for interpreters. There is an issue to be solved regarding the need for a discrete channel between party an intermediary so that the interpretation does not interrupt the course of the hearing.