News reaches us of a document from the Lord Chief Justice, The President of the Family Division and The Master of the Rolls (a trio of ‘Top Judges’) that was circulated to Circuit and District Judges before the weekend, but which has now begun to be distributed amongst the legal professions, via Designated Family Judges and regional email networks (but which, oddly, still hasn’t gone to part time judges).

We have also been sent the following covering text that has accompanied the disseminated letter in some areas :

In an email from the President of the Family Division, indicating that the attached letter can be disclosed to the legal profession, he sets out “The Lord Chief Justice has asked the President of the Family Division to stress that the letter was intended to do little more that remind judges that the decision about listing is theirs, without directing them.  The letter does not purport to be guidance, which is why it did not go out on the intranet.  It clarifies that “do as much as possible” does not mean “do everything as before”. It points to the growing experience, both positive and negative, relating to remote hearings and seeks to assist by indicating the categories of case which a judge might, or might not, consider could be undertaken remotely.”

So, the reason part time judges’ haven’t had the missive appears to be a quirk arising from the fact that it wasn’t intended to be guidance…

However, news also reaches us of the almost immediate effect of this definitely-not-guidance document : judges are reportedly less willing to continue with previously approved trial fixtures in the family court or to list final hearings at all – anecdotal of course. Is this what is called ‘palm tree justice’? An approach which changes with every new piece of guidance (sorry – not-guidance)? Whether it was intended to be a document that would be so immediately interpreted as a call to halt contested hearings is not clear – that it would be taken as such is perhaps unsurprising.

For our part, the document does not in fact seem to be intended as firm guidance telling judges what they must or must not do – it appears to be an invitation to judges to use their best judgment in light of the particular circumstances, to do what they feel is right and fair. And which tells them that they must not feel they HAVE to list over-ambitiously. If judges are immediately changing their practice, does this mean they have felt under pressure to list too many cases? Difficult to say… but our anonymous judge last week seemed to have felt like piggy in the middle.

Below we summarise some of the key parts of this document from a family court point of view.

On the opening page the Triumvirate say that:

National guidance is a blunt instrument and cannot take any account of the strengths or weaknesses of local resources (judicial, staff and technological) and other important factors which vary from court to court and from case to case.

They describe a mixed picture and an emerging appreciation of the need to be reflective and responsive to the needs of all participants in hearings – something we have been highlighting for some time through our recent blog posts.

They say:

…that not all types of case can be dealt with remotely. There may be real difficulties in taking hotly contested evidence by telephone or laptop. Of course, urgent cases must be dealt with one way or another. There may be others where the parties are keen to proceed and are untroubled by the use of technology or where that is the view of the judge. But it has become clear that there are some court centres where, in comparison to the majority, far more ambitious remote listing is taking place.

So, case specific – and a possibility that there is local inconsistency.

The 3 big cheeses make the following general observations :

Since the Reform Project commenced, there has been a common understanding of the Heads of Jurisdiction (supported by the Judicial Engagement Groups, comprising judges of all tiers) that hearings with the judge and all participants attending remotely, would be unlikely to be appropriate for many cases. That position was justified by a range of reasons based on fairness, justice, the importance of the issues and the ability of the judge to assess the witnesses and lay parties in any setting other than an oral hearing in a courtroom.

The advent of the current COVID crisis does not undermine the soundness of the above position, although in the family context there will be cases that have to be dealt with urgently, come what may, or where delay may be damaging. That said, it remains the starting point that, for example, a remote hearing is unlikely to be appropriate for most cases involving the welfare of children before the Family Court and it is against that background that any decision to conduct a remote hearing must be taken. 3. The present restrictions mean that it is likely that case management hearings, or hearings that can be conducted by submissions only can probably be undertaken remotely. The focus of concern is upon hearings which involve the hearing of oral evidence.

The present restrictions mean that it is likely that case management hearings, or hearings that can be conducted by submissions only can probably be undertaken remotely. The focus of concern is upon hearings which involve the hearing of oral evidence.

All of this though is subject to ‘refinement’ once feedback has been received from judges (we pause at this point to say we are aware that the President has sought feedback more widely than just from judges).

The Top Judges then give some ‘suggested broad parameters’ for now :

Generally:

a. If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way;

b. Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;

c. Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.

d. Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.

In Family Cases in particular:

e. Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;

f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;

g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.

h. Where cases have been listed for full trials over the next 3 weeks the listing be reviewed by you as DFJ together with the allocated judge in the light of the above parameters. Where it is decided not to proceed with the planned full trial, the case should be kept in the list as an IRH in the hope that, at least, the issues can be narrowed.

Finally, they say:

We have heard that some judges have been told that they must undertake their full list, as would ordinarily be the case, using phone, video or the internet. We reiterate that this should not be the case. Much can be done, more perhaps if the judge is in a court building…The overwhelming majority of those [hearings that have gone ahead] have not been long hearings involving difficult evidence or high emotion, and for obvious reasons.

There are unwelcome consequences of postponing hearings of any sort at the moment, and perhaps particularly in the family jurisdiction. It will, nonetheless, be inevitable that many will have to be.

We think that documents like this should be made widely available at the original point of their dissemination, so that all participants can understand what is influencing judges in their cases. It is arguable that some judges are over-interpreting this guidance, and there may be tensions between this and some of the many other guidance documents that have emerged over recent weeks – from the many Designated Family Judges, in High Court Judgements or in the various iterations of The Remote Family Court (currently on v3 but we guess soon to be on v4) produced by Macdonald J. Which takes priority and how should they be read together? How judges and lawyers can navigate through the morass of guidance is anyone’s guess, and quite what the parties are to make of it we don’t know. There is so much information at present that it makes things less transparent – too much wood for the trees.

You can read the letter in full here.

We take this opportunity to remind you – parents and family members who have been involved in a remote hearing since covid-19 broke out – please fill in our survey so we can find out what works and what doesn’t.

We have a small favour to ask! 

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Thanks for reading!

Feature pic : cracked mirror by Roland Tanglao on Flickr (Creative commons – thanks)