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Bristol's Experience of Remote Working in the Family Court

Sarah Jennings, barrister of 3PB, with contributions from HHJ Wildblood QC and Sarah Pope, barrister of Albion Chambers, shares the lessons learned from a mock remote hearing in a child protection case.

Sarah Jennings, barrister, 3PB

On 23rd March 2020, the Government response to the Coronavirus epidemic quickly led to the closure of many court centres around the country.  For those of us working in the Family Court arena, this had an immediate impact on the way in which cases were managed and resolved.  Over the following days and weeks, the profession worked tirelessly to ensure that at least the urgent child protection cases could be dealt with fairly and justly in what were obviously very difficult circumstances. 

On 16th April 2020, members of the Bristol bar and social work professionals, led by HHJ Wildblood QC, participated in an urgent hearing in a mock child protection matter.  The roles of the parents were played by actors who were able to provide feedback from the parents' perspective.  The remote hearing was attended by approximately 200 members of the legal profession and social work professionals.  What have we learnt from this experience?

1. Technology for parents – With an imminent move towards paperless courts, most practitioners already had access to the technology that enables remote working and video conferencing.  Within the mock trial, the parents each had access to a device which allowed for video conferencing facilities.  This is not true of many of our lay clients.  A failure to allow parents to engage in hearings where significant decisions are being made about their children and family life is an obvious breach of their Article 6 rights.  Currently, in many cases video conferencing is being used by professionals for case management and directions hearings with parents either providing instructions in advance or using telephones to engage via audio only.  Zoom for example allows for individuals to telephone in to the hearing but this does require sufficient credit and telephone battery.  Some local authorities are assisting lay clients in this regard and others are arranging for video conferencing enabled mobile telephones to be provided to lay clients for contested hearings.  (As a profession we also need to be alive to the issue of electronic bundles.  Whilst this may work well for advocates who have the necessary technology to manage video hearings and access a court bundle simultaneously, many of our clients do not have access to these facilities.)

2. Confidentiality and independence – Many lay clients will be in lockdown in the same house as their partners which raises practical issues when sensitive or confidential topics need to be discussed or when there are concerns about controlling behaviour in the household.  When conversations are had over the telephone or video conference call, it is very difficult to assess whether instructions are being given without outside influence.  Some local authorities are now offering designated, sanitised rooms with suitable computer equipment to enable parents to join hearings from their offices, which may address this problem, in part at least.

3. Subject children – In many cases the subject children will be present in the house during the remote hearing.  In a normal scenario, this would be considered inappropriate for two reasons.  Firstly, children should not be exposed to the adult discussions that are involved in a court hearing and secondly, the parent providing care to the children is likely to be preoccupied or distracted.  It may be that over time, we develop a protocol for the local authority to provide some limited childcare in these situations but as of yet, this has not been addressed.    It may of course be possible for children to attend school or nursery. 

4. Taking instructions from lay clients – In the normal course of events, instructions are taken on an ad hoc basis in court waiting rooms with advocates moving between discussions with other lawyers and private conferences with their clients.  During this time, advocates aim to build a working relationship with their clients whom they may not have met before.  During our mock hearing, the actors commented that it was difficult to build rapport with their representatives prior to commencing the hearing despite having had telephone contact in advance.  The advocates also recognised that much of our role involves assessing body language and reading emotions which is very difficult to do remotely.  Sometimes lay clients can have  conferences with their legal representative prior to the hearing.  In the court room environment, there are often situations in which an advocate would want a lay client to sign their brief to confirm the instructions given.  This is a very complicated process in a remote setting.  A combination of emailed instructions and verbal confirmation of instructions in open court appears to be working in the short term.  It is obviously easier to take instructions by telephone with a professional client.  

5. Practice Direction 12J – The protection of vulnerable lay clients within a remote court process is practically very difficult to achieve.  Under normal circumstances we would utilise physical methods such as screens or technological methods, such as video links, to ensure that the vulnerable are protected from further harm during the court process.  There are obvious technical issues with this in a remote hearing.  The judge, and arguably the advocates, would wish to see the reactions of all parties during the hearing which requires the vulnerable party to be visible on the online platform.  This means that an alleged victim will also be visible to the alleged perpetrator.  Although requests can be made that the alleged perpetrator turn his/her screen off or look away, this is unlikely to make the alleged victim feel any more comfortable.  It is not obvious at this time how issues such as these can be resolved on our current remote platforms. 

6. Capacity and cognitive functioning – Often parents have had limited involvement with legal professionals prior to commencing proceedings and therefore the advocates at urgent hearings must identify any concerns about a client's capacity or understanding.  It is commonly acknowledged that this is not easy to do remotely and, prior to lockdown, often issues of capacity would be adjourned until a face-to-face meeting could be arranged between a lay client and their representatives.  In the current circumstances, this is something that must be tackled remotely to ensure that justice is being delivered fairly.  It is not entirely clear how issues of capacity will be properly identified in the current situation.  Arguably, extended video conferences between clients and legal representatives will be of some assistance but it does not help in situations where clients struggle (either physically or psychologically) to engage or communicate over video conferencing. 

7. Mid-hearing instructions – Inevitably during face-to-face hearings, something will be discussed which requires further instructions to be taken.  In court, this may be remedied through a simple whispered conversation or perhaps a short adjournment but with remote hearings this becomes far more complicated.  Within some video-conferencing software, there is the ability to have "breakout rooms" to allow for private conversations between clients and advocates.  Software such as Zoom requires one representative to be the conference host and then place specific individuals in the breakout rooms.  Given the often antagonistic relationship between the local authority and families, it is important to question whether the lay clients would trust the local authority (as conference hosts) to allow private conversations?  This also requires someone with the necessary technical skills to be "present" in the video hearing at all times.  If video hearings are to be organised and regulated by the local authority, we must consider the additional financial implications that places on the public purse.  Alternatively, if organised by HMCTS this requires further training and potentially causes staffing issues. 

8. Court process – Just as it is difficult for advocates to take instructions in this new remote system, it is also difficult for lawyers to fully explain or discuss matters with lay clients.  Often, a quick hand gesture or quiet word of advice in the court room can greatly assist in keeping lay clients calm and the court process running smoothly.  It is also far more obvious to lay clients in a physical courtroom that the judge will address each party in turn.  It is easy in a remote setting for a lay client to feel ignored or overlooked.  As everyone becomes more used to working remotely, many members of the judiciary are now commencing hearings by setting out the boundaries of the hearing and indicating that each representative will be asked to comment in turn.  Some advocates report using WhatsApp or text messaging to answer questions or explain court process during a remote hearing but it is difficult, for advocates and lay clients, to multi-task to this level whilst a court hearing continues.

9. Cross-Examination – As advocates, we rely heavily on the atmosphere in the court to assess which questions to ask and which to avoid.  We are led by the body language of the judge and the witness and the structure of cross-examination is often a fluid process feeding off the rhythm of questions and answers between advocate and witness.  There is no doubt that working remotely makes this more difficult.  We all have experience of cross examining through video-link with busy professional witnesses and occasionally with vulnerable witnesses or those physically unable to attend, however cross examining each and every witness remotely is challenging.   Unfortunately there is no obvious solution to this issue and it is something that we will have to adapt to.  Some advocates recommend fixing the screen so that the witness alone appears on the advocates' screen but this does mean that the advocate is unable to gauge the reaction of the court and/or other advocates. 

10. Intensity – HHJ Wildblood QC is acutely aware that remote working is far more intense for the professionals involved than a standard court day.  It is important that regular breaks are taken during the court day and hearings commence and conclude within "normal" court hours.  He also recognises that during longer hearings it will be necessary for non-sitting days to be built in to the timetable to ensure the wellbeing of the judiciary, professionals and lay clients. 

11. Sealed orders - for urgent hearings, the local authority representatives will regularly stay at court to obtain a sealed order.  Although this may appear to be a practical obstacle in remote working, it is understood that all members of the judiciary have the ability to issue a sealed copy of an order remotely. 

12. View from the lay clients – Although neither actor had any experience of normal court hearings, both commented that the remote hearing felt fairly informal; however, both reported quickly becoming immersed in the process.  They noted some of the advocates had the camera angled up at their faces which felt quite intimidating.  This is something to consider and is easily remedied. One of the actors commented that he thought it might be easier to take the adverse decision (children taken into interim care) when he had the security of his home around him; he compared this with how he might have felt in a court room, surrounded by strangers and facing a bus ride home.

Since this mock remote trial took place, the Court of Appeal has considered several cases in which the limitations of video conferencing were considered.  It is important to remember that each case must be considered on its facts and the fairness to all parties should be at the forefront of everyone's minds.  That said, the Court of Appeal have been clear that in certain circumstances justice will demand that such significant matters are considered via remote hearings and it is hoped that the above observations and considerations will assist others as we work together in these difficult times.