The Law Society has urged the President of the Family Division to issue ‘best practice’ and ‘top tips’ rather than full prescriptive guidance on remote hearings.
In a letter sent to Sir Andrew McFarlane earlier this month (12 May), Penny Scott and Jerry Bull, Chairs of the Law Society Family Law Committee and the Children Law Subcommittee, said: “Fundamentally, the family justice system must continue to function and serve all parties in the most consistent way. It may seem that guidance is the best way to achieve this, but there are aspects of providing guidance that may not lead to desirable outcomes.
“Moreover, it seems valid to conclude that we will be embedded in remote hearings for the foreseeable future; even where the family courts gradually begin to reopen, remote hearings are very likely to remain the norm for the majority of hearings. It is therefore likely that any guidance could quickly become out-of-date and perhaps be applied to the detriment of the parties, potentially undermining justice. Therefore, we do not consider blanket guidance issued by the President to be the best outcome.”
The letter, a copy of which is available here, said that “as with any difficult and nascent circumstances, lessons are being learned as we go along”.
But it warned that “we are still proceeding with a large number of unknowns and very little data to extrapolate from”. Scott and Bull noted the work being done to reopen courts for physical hearing and said the Law Society had engaged with Lord Justice Baker on this, “but we are unsure which buildings will be considered suitable and how cases will be listed and managed once space is available”.
The letter noted that ‘hybrid hearings’ were likely to be the model moving forward but it was uncertain what these would look like.
In the context that remote hearings will continue to be used either for the entirety of a case or for part of it, throughout the family justice system and for the foreseeable future, the authors said they considered that it would be “most valuable” for the President to issue ‘best practice’ and ‘top tips’, rather than full guidance, on areas covered later in the letter [such as the use of technology, types of hearing conducted remotely, case organisation, collation of data and sharing of best practices, representation of clients, domestic abuse, and reopening the Family Courts].
Scott and Bull said: “Moreover, we consider it hugely important that data is collated on how remote hearings are currently being conducted, those that are going ahead, those that are not and the reasons for these decisions, as well as information on how parties think cases are going.
“This data could continue to inform any such documents, and the format of ‘best practice’ or ‘top tips’ will fit better with the gradual collection of data as it allows for amendments to be easily made, without numerous iterations of a full document. Additionally, a more flexible document makes it easier to edit and apply to the subsequent phases of remote hearings, including a move towards hybrid hearings.”
Scott and Bull said they were hearing from members that guidance fatigue was being felt across the profession. However, they also said they considered it vital that HMCTS provide full and clear guidance on keeping the courts safe for public use and that this information be widely shared.
In relation to the types of hearing being conducted remotely, the letter said that a decision to vacate a hearing should be based on the impact of delays on any children involved and the likelihood of a fair hearing being undertaken for all parties. “However, currently, any case that is vacated will be vacated on the grounds that it will be heard once physical courts are open again, despite the fact that it is unclear when this will happen and how the courts themselves will approach this. This means that a case could be adjourned indefinitely, which is not a desirable outcome, particularly for cases involving children who need to be provided with security.”
Scott and Bull said that rather than a presumption of hearings being adjourned or a blanket policy to that effect, there could be a list of specific factors set out by the President for particular consideration by judges when deciding whether to proceed with contested hearings.
“For example, a short fact-finding hearing with all parties having good access to technology, not including litigants in person, not requiring any interpreters or cross-examination of lay witnesses seems more likely to be fair to all parties than an extended hearing where not all parties have legal representation, where cross-examination of lay witnesses occurs, where interpreters are required and where poor technology is used.”
The letter continued: “The more relevant factors a case has, the less likely it is that fairness will be upheld for all parties. It was interesting to read how some of these factors were worked through in both Re P and Re Q, and these judgements should definitely be highlighted in any document put together by the President.”
Scott and Bull said a checklist of specific factors should aid judges in making decisions, rather than setting out a blanket direction to adjourn particular types of hearings. “This allows for deliberation of individual cases where the considerations themselves are uniform, rather than the actual decisions as to the types of cases being heard or adjourned.” [emphasis in the letter]
The letter said the opinion of the parties on the continuation of hearings should also be considered by judges when making decisions “as this ensures their voices are heard on this fundamental issue; some parties may just want to see these cases resolved and consider it in their best interests to carry on. This is a valid position to take and should not be ignored.”
Scott and Bull added that it was reassuring to read that the majority of those who contributed to the FJO report agreed that it was appropriate to carry out directions and case management hearings remotely in the current climate.
“It also seems to be widely agreed that remote hearings are suitable for simple hearings that are not contested. This was very much the feeling of our members and continues to be our position as these cases are the least likely to prejudice justice and fairness, but any such prejudice should be continually evaluated throughout the hearing.”