It is encouraging that HMCTS (Her Majesty’s Courts and Tribunals Service has published their organisational risk assessment, dealing with the broad approach to the assessment of risk around the attendance of public and professionals at court hearings during the Covid-19 outbreak. It is for others to comment on whether the apparent assumption that adherence to a two metre social distancing rule within court buildings will in fact be safe, though we note that some materials suggest that spending long periods of time in a confined room, especially an air conditioned one, is unlikely to be risk free. People can however, make up their own minds about that assessment and whether or not it is wise for them to attend court if not essential.

However, self evidently the national risk assessment doesn’t help much when trying to assess the particular risks associated with a particular court building – which are variable. As you would expect, individual courts are therefore making specific risk assessments. What is less encouraging is that HMCTS apparently has no plans to publish these local risk assessments.

In an email to members the Family Law Bar Association said this week :

[HMCTS]… have delegated the task of risk assessments to each court through a ‘Senior Person On Site’ or other competent individual. HMCTS rely on these newly appointed persons to apply the criteria. These are usually the senior court manager. It is unclear what training the SPOS have had in applying Covid 19 Risk Assessment factors. What we are told is that Public Health have not been engaged in any spot checks or walk throughs of the Family Courts. In our view they should be involved in checking and signing off on some sample family courts to give us greater reassurance – quality control is key. Furthermore, there must be copies of each court risk assessment which should be available to our members in the interests of transparency. HMCTS suggest that it is not practical to post each risk assessment on their website as it would involve hundreds of assessments. These will be available over the counter apparently at court. The problem is an obvious one – people will need to take a risk to have sight of the risk assessments.

The idea that someone has to attend a closed or possibly unsafe court building (with a closed counter?) to obtain a risk assessment in order to establish whether it’s safe to attend the building in the first place is like something from a Joseph Heller novel. The only thing we’re not sure of is whether its modelled on Major Major…

“Major Major never sees anyone in his office while he’s in his office.”

…or the actual eponymous Catch-22 :

There was only one catch and that was Catch22, which specified that a concern for one’s safety in the face of dangers that were real and immediate was the process of a rational mind.

Anyhoo, it’s great that the FLBA have committed to try and plug this gap :

We will do our best to publish on some of the walk through safety plans for key courts if these are provided to us by members and judges. The current regional and national protocols and practice guidance can be found there. 

The task of collating all regional and national protocols and practice guidance is no mean feat, and to add to this the task of collating risk assessments and plans for each court centre is even more burdensome. This should really be the responsibility of HMCTS (for whom it would be much more straightforward since they hold all the documents in any event). Even if the FLBA manage the task it will be less accessible to the public (how will they even become aware that this is where the documents are housed?), and the public have as much need of and right to them as the professionals.

It is clear from the number of first instance and appellate judgments being published, where a major focus has been whether a hearing should go a head remotely or in person, how it should happen, what the safety issues are etc etc – that the specific detail really matters (see our posts here here and here for example). All the authorities are telling us that these are important case management decisions which are fact specific, and that means that not only does a judge need to look at the particular vulnerabilities and needs of the parties, and the needs of the case, but also what risks and mitigations have or can be put in place in the specific court to meet those needs and reduce those risks. More to the point, the parties and their lawyers will need to have access to those documents in order to give and receive advice and instructions, and to be able to present their positions to the court to enable judges to make sound and safe decisions, and to reduce the need for appeal.

We hope that HMCTS will undertake to maintain a list of each and every court specific risk assessment or plan in due course and to keep it updated. If and when it does we will add this to our list of Covid-19 links and resources here. The FLBA also tell us that the assessment tool to be used will be published shortly. [update 21 May 2020 – risk assessment tool now published here]. 

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.

Our legal bloggers take time out at their own expense to attend courts and to write up hearings.

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Thanks for reading!

Feature pic : seeing eye by Valerie Everett on Flickr (creative commons – thanks!)