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Article: Access to justice in remote hearings in the Court of Protection and Family Courts20.04.20

Access to justice in remote hearings in the Court of Protection and Family Courts

by Dr. Barbara Green,17 April 2020

The Lord Chief Justice, the Master of the Rolls and President of the Family Division have written to Circuit and District Judges of the Civil and Family Courts to record their appreciation for the efforts being made across all parts of the judiciary to adapt to new styles of working during the pandemic [1]. They observe that there has been a great deal that has been learned quickly about the practical benefits and limitations of conducting hearings remotely and extensive materials and support have been shared across the legal community to facilitate such hearings being undertaken.

It is suggested within the letter, that urgent cases must continue to be dealt with by whatever means is appropriate in the current context. Where the Judge is satisfied that it is safe and just to do so, other hearings can be effectively dealt with by phone, Skype, or similar IT platforms. But to assure fairness and access to justice, remote hearings are not to be considered as a panacea that should be adopted in all cases,

the overarching criterion is that whatever mechanism is used to conduct a hearing must be in the interests of justice…. Every hearing we conduct in whatever form must provide a fair hearing”.

Where a hearing will involve difficult evidence or be likely to be highly emotional, or where the Judge would be limited in assessing witnesses other than in a live court, the letter advises Judges that whilst listing remains a matter entirely for them, in some instances delay must be accepted as inevitable and the hearing should be re-listed for when the emergency subsides.

The centrality of fairness and access to justice for all parties had been emphasised by Mr Justice McDonald in the Protocol for Remote Hearings in the Family Court [2]

“Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which 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]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”

On 17 March 2020 the first entirely remote hearing in the Court of Protection (CoP) was held over 3 days. This contested final hearing was positively reported in legal and media circles. But the feedback of the lay party was very different. Her reported experience was “It didn’t feel professional. It didn’t feel like justice[3].

The potential for tension between the justice system continuing ‘business as usual’ on a remote basis where possible, and the experience of justice for lay parties within sensitive Family Court and CoP hearings was starkly illustrated to me during a recent case.

I was involved in a matter in the CoP, instructed to represent ‘X’, the husband of ‘P’. A four-day finding of fact hearing was listed involving seven witnesses; six professionals and X. At an advocates meeting it was agreed that the legal professionals for all parties had access to Skype for Business and the local authority confirmed that each of its’ practitioners who were to give evidence had access to Skype and were comfortable to give their evidence via this medium. In principle, therefore a remote hearing seemed possible.

However, all parties acknowledged that the outcome of the hearing potentially had exceptionally serious consequences for X, in terms of his future relationship and contact with his wife; the possible annulment of their marriage and serious incursions into their Article 8 rights to their family life; and his working relationship with her professional carers. There was some discussion of how X might feel about the legitimacy of the hearing and cross-examination being undertaken remotely.

During a Zoom 3-way conference the next day between X and his legal representatives it became apparent that X was limited in terms of the IT options available to him. He had access to a desk-top computer, but it did not have a camera, and nor has he previously used Facetime or Skype. More importantly were his views that the cross examination of seven witnesses requires the physical presence of the parties at court to be fair and effective. He was concerned that his Article 6 rights should be respected and felt strongly that the fact finding hearing could not be conducted fairly by Zoom, Skype or other remote link.

X is himself a vulnerable person. We discussed how he might be practically and emotionally impacted by the hearing being held remotely and what support would be available to him. He lives alone, he has chronic physical and mental health problems and through an arduous fact-finding hearing over four days he would have to cope with the stress and any distress in isolation. His legal team would be able to provide support, but this would inevitably be limited by the hearing, and also their contact with him being conducted at a distance.

X was anxious for the court process to be resolved soon in the best interests of both him and his wife. However, in the present circumstances a delay would not place ‘P’ at risk or cause her any disruption. His wife is settled in a care home which has closed its’ doors to visitors in the light of the public health crisis. The local authority’s stated intention is for her to remain there for the duration and he does not object to this. Whilst he is understandably distressed that their contact is necessarily disrupted, he is not seeking direct contact with her at this time.

On balance, he requested an application be made for the hearing to be adjourned and be re-listed as an attended hearing after the pandemic, whenever it is practical and safe to do so.

X’s views and the practical IT issues were shared with the other parties who both opposed the suggestion of an adjournment. The Judge helpfully listed a Skype for Business hearing on the adjournment application the next working day.

The position of the applicant local authority was that guidance from the Vice President of the CoP is that remote hearings are the default position until further direction, and the Article 5 and 8 rights of ‘P’ should prevail. The six professional witnesses had agreed to use Skype to give evidence and it was argued that X’s counsel would be able to view the witnesses on his behalf even if he was unable to do so. If necessary, the local authority would provide X with a web-cam [4] for him to use during the hearing, and therefore there were no technology issues that prevented the hearing taking place remotely.

Those representing ‘P’ also argued that remote hearings are the default position and that from her perspective delay could compromise key decisions that are needed to be taken in her best interests in the longer term. It was asserted the court should give its’ full consideration to the over-riding objective as set out in CoP 2017 r.1 for cases to be dealt with justly and at proportionate cost. The parties would be on an equal footing if the technology issues could be overcome and the expense of an adjournment and waste of court resources could be avoided.

The Judge rejected X’s application to adjourn. He acknowledged the argument made on his behalf in relation to fairness and equality of arms, and that there were valid concerns for his welfare during the remote hearing, whilst living in isolation and being necessarily restricted in his opportunities for contact with his legal team. He stressed that these should not be overlooked. However, he would ensure that the court would be sensitive to these issues and would pro-actively manage the practicalities to ensure fairness. He did not consider that there was an overriding Article 6 argument for X. He directed that if a reliable technological solution could be in place, and the timetable allowed for adjournments for X and for him to be able to speak with his legal team, then the hearing should proceed. He refused X permission to appeal.

With only two working days until the hearing an application to a Tier 3 judge for permission to appeal was made on X’s behalf. It was challenged whether it would be appropriate to proceed with a hearing by remote means, where a lay party objects to that method of hearing and where there are no safeguarding issues for ‘P’; that insufficient weight had been given to X’s Article 6 rights, his personal circumstances or the significance of any potential findings; and the unfairness should findings be made at a hearing that he objects to continuing on a remote basis and which requires his legal representatives to be working remotely from him.

The Judge was informed that a further appeal was being prepared. However, before he had sight of this application, he contacted all parties to state that he had reconsidered and had decided to adjourn the fact finding hearing. He explained that his experiences in the intervening days of hearing difficult contested proceedings remotely had caused him to reflect on and revise his decision.

Before confirming the new order, he invited written submissions from the parties. For X I reiterated the arguments for adjournment and both the applicant and those representing ‘P’ advocated for the original decision to stand and for the hearing to go ahead. On ‘P’’s behalf, however, it was noted that the court is evolving its’ thinking about remote hearings and this may influence the judgment of fairness.

The Judge refused their applications and gave a further judgment. In this he noted that through his direct experiences of conducting remote hearings and the experiences that have been reported to him by other Judges, he had become increasingly concerned not only by technical difficulties but most importantly the fairness of such hearings, particularly for individual litigants, even if represented by a barrister or solicitor remotely. He described that the thinking across the judiciary was continuing to develop and whilst there is an admirable effort to keep cases progressing, the potential unfairness in some instances must be recognised. Permission to appeal was refused.

In summary, it is reassuring that as new styles of working become quickly established, senior judges are alert to the personal and legal challenges that these may present for family members and vulnerable parties, and they have emphasised the continuing and central importance of ensuring fairness and justice for all.

There will be sensitive cases currently before the courts that must proceed remotely even against the wishes of one of the parties, for example the urgent removal of children or adults from abusive settings, or where life-saving treatment is required.

The starting point for the court is the overriding objective to deal with matters justly and at proportionate cost. In the new style of working there must be transparency in the balancing of the necessity, appropriateness, and proportionality of a remote hearing to achieve this.

The right of access to a court is an inherent aspect of the safeguards enshrined in Article 6 [5]. Those rights of access are reflected in domestic law, for example as expressed in C (A Child) [2019] EWFC B53 “It is axiomatic that a trial should be fair. That is at the heart of our system, is common sense and is enshrined, in any event, in Article 6.”

X was relieved that the the fact finding hearing has been adjourned until an attended hearing is possible. However, the intense experience over a few days of repeatedly having to argue for a fair process has shaken his confidence in the justice system.

Fairness and justice must be experienced by lay parties or there is a risk that they may be left with an overriding impression that justice may be sacrificed at the altar of technology. In the exceptional circumstances of the pandemic it remains essential that “Not only must justice be done; it must also be seen to be done” [6] 

 

[1] Message for Circuit and District Judges sitting in Civil and Family from the Lord Chief Justice, Master of the Rolls and President of the Family Division, 14 April 2020
[2] Protocol for Remote Hearings in the Family Court, v3, Issued 03 April 2020, endorsed by Mr Justice Hayden Vice President of the Court of Protection, Remote access to the Court of Protection guidance, 31 March 2020.
[3] http://www.transparencyproject.org.uk/remote-justice-a-family-perspective/
[4] A tablet was offered a few days later
[5] Zubac v Croatia App No. 40160/12 [2018] s76 et seq
[6] R v Sussex Justices, ex parte McCarthy [1924] 1KB 256.