This article was authored by Byron James.
The impact on the practice of family law of Covid-19/coronavirus can be split under two headings: i) the impact of any restrictions on movement/attending public spaces by the government; and, ii) providing a safe physical environment for people to work and participate in the justice system. These are not quite the same thing, although they are related. It remains to be seen at the time of writing what the government will restrict going forward, it is notable however that Courts in Ireland and Australia have ceased sitting until April 2020 other than in urgent/emergency cases.
There is a risk to judges, to practitioners, to members of the public in requiring them to personally attend unsafe public spaces in the current circumstances. Where personal attendance is required by the procedure rules, is the government not assuming a duty of care over the people it is requiring to attend? Is it possible for them to meet that duty of care in the current circumstances? Are judges entitled to request safeguards/background checks of litigants and practitioners before they come in front of them? What of judges, court staff, practitioners, clients who are older or have respiratory issues, is it presently safe for them to work at all in a Court building? Can one, for example, sensibly expect a barrister, with serious asthma issues, to take public transport every day and attend a public building where numerous people come and go without any safeguarding or checks at all? Are reasonable adjustments available to create a safe working physical space for the professionals and clients to attend?
There is a simple step that can be taken, which has perhaps been in the offing for some time, that will ease the present risk Court hearings and buildings impose upon those involved: remote hearings.
I am based in Dubai, in the UAE. I have been so for over three years. During that time, I have worked with clients based all over the world, conducted many conferences with Counsel and private FDR hearings and attended upon all remotely.
One private FDR saw both clients attend separately from different locations in South America, Counsel and the Judge attend from 1 King's Bench Walk chambers in London and me in Dubai: three continents, four separate attendees and the private FDR proceeded perfectly, and the matter settled. We did not use any specialist equipment other than laptops, one party used their iPhone, all used normal Wi-Fi connections. The hearing was not recorded but could have been if we had so chosen to do so as the software allowed the facility; the software used provided a password entry requirement to ensure no-one without the password could attend. At the start of the private FDR, both parties were asked to confirm they were in a quiet place, with no-one else present and to say if this situation changed. Outside of the "Court part" of this private FDR, each party and their respective legal teams had separate online meeting rooms which they used to take instructions and discuss matters. There was also separately a chat facility function that was used to pass instructions to Counsel during the "Court hearing" part.
It was therefore with this private FDR in mind, conducted 18 months ago, that I look at some of the responses to the prospect of remote hearings with surprise. I do understand that there is an inherent resistance to change and a suspicion that involving technology might engage the law of unintended circumstances somehow down the line. We are, however, as a family law community, significantly behind most of the world when it comes to our use of technology. I worked in New Zealand in 2013 on a Pegasus Scholarship, some seven years ago. There, every two hours of a hearing, someone comes in and hands out near word perfect transcripts of the preceding two hours of Court hearing. The Court records what is said, produces typed transcripts and provides them almost contemporaneously to the parties. There was also the use of smart whiteboards in the Courtroom and other everyday type tech, all of which we are still, even now, some distance from being able to utilise in family law hearings.
One only needs to look at how differently arbitrations and private FDR's are conducted rather than those in the Court building to see how far behind the Court is; even just trying to attend by phone at the Central Family Court or Family Division is a logistical nightmare, let alone trying to arrange a video attendance. Whilst some Court Centres have some limited facilities, they are only some and certainly limited.
The common theme with the Court and technology, where the whole thing usually falls down, is relying upon the Court to provide and facilitate the technology. As soon as parties are put in charge of providing the software and making arrangements for matters such as remote attendance of a party, it almost always works well. When one is debating the necessity of a private FDR or one through the Court, requiring the remote attendance of a party is often reason enough to tip the scales towards a private FDR. It should not be this way. There are solutions available right now that would work, it just requires Judges and practitioners to be open minded and apply what is already happening in the private sphere to Court proceedings. The chambers my firm works with most (29 Bedford Row, 36 Family, 1 King's Bench Walk, 4 Paper Buildings and St Johns Buildings) are all excellent at providing high level remote facilities; my firm, and I am sure many others, are now already well versed in providing remote attendance of parties and lawyers at hearings. So why should this only be available in private hearings and not those arranged through the Court?
There is a suggestion amongst practitioners that you need sophisticated technology to participate and that is not widely available to everyone. I disagree. All that one needs is a secure (i.e. password protected) WIFI connection, a device that allows access to the internet with a camera and microphone/speaker (i.e. most smartphones, laptops and computers) and the software is easy to use. Most practitioners use either Lifesize or Zoom, both of which enable people to attend without having to create an account or pay any fees, allow multiple users (the most I have had personally on Lifesize is 12).
What of the press? They could be given a link to the meeting upon request and attend in the same way as the parties. If their attendance is an issue, it can be dealt with as a preliminary issue in the same way as in hearings presently.
What of recordings? Both Zoom and Lifesize allow for hearings to be recorded. These recordings could be provided to the Court at the conclusion of the hearing, perhaps made the responsibility of the person providing the secure video link. The Judge can then approve the recording before it is provided to the Court service for archive or sent to transcribers if a transcript is deemed appropriate.
What of cross-examination? The complaint goes that it is far harder for judges and for practitioners to pick up on the body language cues of those giving evidence remotely and makes the job of determining truth and testing that truth much harder. This is something that people are simply going to have to adapt to. It might be harder now, but how much experience do people really have? Is it that it just feels different and therefore feels less effective? It might ultimately be a necessity if a quarantine become the norm for the foreseeable future. It would be interesting to see how people feel after cross-examining and determining evidence remotely as a matter of routine for some time. Would it be seen the same way?
What of litigants in person? I accept this is more problematic where neither party is represented and a lawyer available to arrange a secure video link. Just as thought, and only as a temporary measure, could this be an opportunity for the Court to ask practitioners local to the Court to lend their facilities for the Court to use in those circumstances? Say, for example, there are two litigants in person with a First Appointment listed at the Central Family Court: could the Court ask Expatriate Law if they would be willing to facilitate the video link? Or a chambers local to the Court? I suspect in these difficult times, there will be many firms and chambers willing to help judges and litigants and provide them with the service. Having provided the secure video link, there is no reason for anyone from the chambers or firm to be involved in the substance of the hearing and therefore it can continue in private if required. An undertaking can be provided regarding ensuring the privacy/integrity of the recording of the hearing and provision to the Court forthwith following the hearing's conclusion. Ultimately, litigants in person now participate in hearings by following the Notices of Hearing provided to them. If clear guidance was provided to them in the Notice of Hearing as to how they were going to be required to attend remotely, and a requirement on them to raise any issues with the Court well in advance.
How will the Court know the parties are able to attend remotely? Maybe one could create a form similar to the Form G: instead of "are you ready to negotiate at the First Appointment?" it could be "are you ready and able to remotely attend the hearing?". Where a party indicates they are not able, they can be asked to provide the reason why not and it put to Court staff/a judge to resolve the same.
I therefore think the following steps could be taken that would provide the Court now with a workable facility for remote attendance that could be operational almost immediately:
1) Parties/legal representatives can informed that the Court expects the parties to facilitate remote attendance wherever possible. To this end, the current suite of family law orders can be amended to include the following new provision regarding listing remote hearings:
Further hearing by way of video link
a) The application shall be listed for a further directions appointment/financial dispute resolution appointment/case management appointment/final hearing before a [District/Circuit/High Court] Judge by way of a secure video link [on the first open day after [insert date] [suitable to counsel for both parties] / [on a date to be fixed in consultation with counsel's clerks] with a time estimate of [insert]. [The parties and their legal advisors shall file their dates to avoid by [insert time and date].
b) The applicant's solicitors shall make arrangements for the secure video link and provide confirmation to the respondent's solicitors and the Court no later than three days before the hearing that:
i. the secure link has been obtained and the name of the service provider;
ii. that the link allows for the remote attendance of at least the relevant judge, counsel, solicitors and the parties;
iii. that the link allows for the hearing to be recorded (and the Court hereby gives permission for the hearing to be recorded in this way);
iv. that the link allows for the online meeting room to be locked by way of password entry; and,
v. the parties and their legal representatives shall not provide details of the link or the relevant password to any person who is not a named party or a legal representative of a named party
c) In the event that the hearing is directed to take place in private, all attendees in the online meeting room shall confirm at the commencement of the hearing that no other unauthorised person is present. Where such confirmation is not satisfactorily provided or possible to obtain the Court may either adjourn the hearing or proceed in the absence of that attendee at the discretion of the relevant judge,
d) Following the hearing, the applicant's solicitors shall ensure that the recording is provided to the Court and the respondent no later than 24 hours following the hearing.
2) The DFJ of each Court requests volunteers from local practitioners to be placed onto a list that the Court can call upon to assist arranging a video hearing where both parties are in person. In such an occurrence, the volunteering firm/chambers shall perform the same functions as the "applicant" in the above direction. Where there are no practitioners available to the Court, then volunteers can be requested nationally to see if assistance can be provided. Where no such assistance is available, only then will the Court will determine whether the hearing has to be adjourned or whether there are measures which could be put in place to allow the safe attendance of the parties and legal representatives in person at Court.
At the time of writing, the scale of disruption to the practice of family law provided by Covid-19 is unclear. It is clear however that irrespective of measures implemented by the government, there are clearly difficult questions around the ethics and legal duty of care in requiring personal attendance of parties, professionals and the judiciary in an unregulated, physical public space. The above is intended as a guide to how those issues could be avoided forthwith, and begin the process of Court hearings utilising technology that is already used every day in the private sector.
Court hearings have to take place, family law cannot be simply adjourned barring emergencies to April or May 2020 (as presently in Ireland). The parties need decisions, resolutions, outcomes in relation to child welfare, interim and long-term financial issues and it is our responsibility to provide a facility that allows that irrespective of Covid-19 or Coronavirus.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at email@example.com.