This blog is a follow-up to our previous blog ‘Remote Hearings Widely Introduced in the Family Courts due to Coronavirus’, which we would encourage you to read first.
In the coming weeks and as the lockdown restrictions are gradually lifted, all court buildings will look to re-open. That said, it is expected that social distancing restrictions will continue to remain in place for several months and the President of the Family Division has said it is unlikely that a return to the pre-Covid 19 court system will be achieved before the end of 2020 or even Spring 2021.
With that in mind, this blog will seek to provide some guidance as to how remote hearings are working, having been in place now since March 2020.
What determines if a hearing shall be held remotely?
Early on, some hearings were being adjourned because the lockdown restrictions were expected to last a few months only and face-to-face hearings were considered to be more appropriate. Although the courts will be re-opening shortly, the requirements to implement social distancing measures will mean there will be a much lower capacity for hearings than before. On that basis, adjournments of future hearings and further adjournments of hearings in existing proceedings are unlikely.
That said, the Family Court will now be looking to offer a mixture of remote hearings, hybrid hearings and fully attended hearings at court. Each judge, magistrate or legal adviser shall have discretion to decide how the hearing should proceed on a case by case basis.
What is the difference between remote hearings and hybrid hearings?
A remote hearing takes place away from the court, where the Judge, parties to the proceedings and their legal representatives shall join the hearing by telephone or video link, using their mobile phone or laptop devices.
A hybrid hearing is where some of the parties attend the hearing at court and the remainder engage with the process remotely. The thinking behind this type of hearing is that it will allow for some parties to be supported by their legal team, albeit with social distancing measures in place, from the same location. This is a new development that is still very much in progress and will depend partly upon the availability of a COVID-safe working environment in courtrooms and court buildings.
Which platform is currently favoured by the courts in remote hearings?
The court is to give at least 3 days’ notice of the platform that is to be used for any remote or hybrid hearing.
Telephone hearings will still be listed in some cases, usually those which require short case management or review hearings. They are unlikely to be considered suitable for any hearings where evidence is to be given or where the nature of the hearing is more complicated and substantive.
The Cloud Video platform [CVP] remains the favoured digital platform by HMCTS for hearings that are to take place by video link. It functions via an internet browser and can therefore be used without parties having to download an application to their chosen device. It is already in use in a number of criminal courts and has started being rolled out to Family Court centres.
Parties shall be sent instructions on how to join the hearing, either by the court or their legal representatives, prior to the date of the hearing.
Telephone hearings will usually be arranged by the court. Parties will need to ensure they have provided up-to-date contact details to the court and that they can accept calls from withheld numbers.
HMCTS has produced the following guides on joining court hearings by video call or telephone, and how to join a CVP hearing:
What happens at a remote hearing?
Remote hearings will take place punctually and therefore it is important that any pre-hearing discussions with legal representatives are arranged to take place either before the hearing itself or the day before.
At the start of the hearing, the Judge will advise those in attendance that it is being recorded and shall stress the important and serious nature of the hearing. As these hearings are private, it is possible that the Judge may seek to ensure that parties attending remotely are on their own.
The Judge and all other parties attending the hearing should have an electronic bundle of the relevant documents to the proceedings. Although some digital platforms allow for documents to be shared on screen, as they will be referred to at various points during the hearing, it may be easier for parties to have a paper copy of the bundle available to hand. This is particularly helpful if parties only have one device available for use at the remote hearing.
Parties may find that during the remote hearing, they will have been muted. This is a function that the Judge will have control of, and it will usually be exercised to ensure that parties do not speak over each other.
Judges can hear evidence from witnesses at remote hearing and make Orders in the usual way. A copy of the Order, which records the outcome of the remote hearing, shall be provided by the court to all parties after the hearing has taken place.
How can parties communicate with their legal representative during a remote hearing?
This will depend on each party’s circumstances, although email or WhatsApp are can be used to privately message their legal representative whilst they are attending a hearing remotely. It will be important to agree in advance with the legal representative on what method of communication will be used during the remote hearing.
Some video platforms also allow for ‘break-out’ rooms where parties can have a private conference with their legal representatives before the hearing or during it. Again, this is a function that the Judge will have control of during the hearing.
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