Inspired by Celia Kitzinger‘s efforts in the Court of Protection and MacDonald J’s lecture last week, I’m hoping to attend some remote family court hearings under the legal blogging pilot in coming weeks to test the practical reality behind the theoretical right for legal bloggers to observe and apply to report from otherwise private family court cases in the particular context of remote hearings.
Those rights play a part in giving effect to an important underlying principle that even family justice (which operates on a more private basis than other types of hearings because of the nature of the subject matter and the vulnerability of those involved) should still be delivered as openly as possible.
Arguably this is all the more important right now. The pressures on those seeking justice and the issues they are seeking justice about are heightened for many. The rights and protections they are relying on are very squeezed at this time. Parents facing applications to remove a baby temporarily at birth, for example, may be facing the prospect of just virtual contact with them for weeks or even months. Councils are managing with fewer staff and greater restrictions on visits, which make it harder to be confident that children are safe enough.
Equally there’s a need to be as clear as possible right now, about the weak spots of remote hearings for open justice, given the wider digitalisation roll-out underway pre-Covid, and to flag and work through them before they risk becoming embedded by mere passage of time and familiarity. The reach of the digitalisation programme has always included family law cases and even care cases, though no one expected the impact to be felt so quickly or widely. MacDonald J’s lecture last week captures the issues for remote family courts. His view is that
such successes as we have had with remote hearings during this period of crisis should not be taken as establishing a settled mode of remote operation for the family courts that will apply without more after the resolution of the current COVID-19 crisis.
See also this published letter urging consultation with ‘the eyes and ears of the public’, rather than just those organisations representing mainstream commercial media.
In short, the potential practical obstacles to attending remotely were high. My aim was to find those most obviously likely to work and play my part in ensuring they did. Later I’ll be trying to attend those remote hearings more likely to throw up real practical obstacles.
I looked for a remote hearing listed for 2pm to allow time, after publication of the lists the afternoon before, to make contact with the judge via the court admin system, and to chase it through if necessary. I wanted to explain my purpose and limited reporting ambitions ahead of the hearing – ideally to all representatives as well the Judge – our experience at The Transparency Project is that providing information and notice make objections and anxieties much less likely. I ruled out emergency hearings and even 10am hearings since listings don’t even go up online publicly until tea time the day before they are heard, by which time the court office is already closing. I sought a care case not a private law case, in case I found myself dependent on an Applicant’s lawyers setting up the hearing administratively. I also wanted to avoid a hearing involving just litigants in person, for now at least. They generally struggle enough with self representation without having to get their heads round a legal blogger (thought I’ve yet to have a LiP object to me attending once I’ve explained my objectives). Within these parameters, I looked for the most senior judge available since they are more likely to be used to reporters attending, even if only occasionally.
I settled on the first 2pm remote hearing of care proceedings listed in the Central Family Court (CFC) at circuit judge level the following day, that I could find. It Re: ZC19C00773 Re: A Minor to be heard ‘off site’ before His Honour Judge Marin on Wednesday 27th May 2020. I asked about a bit to check that C meant care proceedings as there is no interpretation key to these listings codes. The daily online listings site for the Royal Courts of Justice now helpfully tells reporters who to get in touch with to attend a hearing. There’s nothing equivalent as yet at the CourtServe site for other daily family court hearing online lists, but contact details for the CFC generally are at least easy to find online:
Making contact – Getting invited onto the call
At 8am on Wednesday I pinged my email to listing and the care section of the CFC asking for it to be forwarded to HHJ Marin in notice of my intention to join his 2pm hearing. I attached the necessary paperwork, and clarified my aims and the limits of my wish to comment on the case facts beyond generalised (non identifying) issues arising.
By 10.30am I’d heard nothing, so followed up by phone. An automated service at listing told me no one was available and to try another time but I got a helpful human at the Care Section, re-sent my email and enclosures as requested and rang back to confirm my email had now been forwarded to HHJ Marin. By lunch time I had email confirmation from the public law department that I would be joined to the hearing and how, and that my email had been sent to the local authority for forwarding so all parties had notice of my presence, it’s purpose and the pilot. Shortly before 2pm the Judge was in touch personally to welcome me and explain how he would be dialling me in and introducing me. I was able to confidently wait for contact which occurred exactly as intended.
The hearing itself
Listing information provided no insight into the type of hearing to expect beyond that it related to care proceedings. It turned out to be an Issues Resolution Hearing – a final directions hearing to prepare for and list a final hearing of a local authority’s application for a care order for one child, a boy. Their plan (which seemed not to be actively opposed by any of the other parties) was that he live long term with his grandparents under a Special Guardianship Order with a support package that would include family therapy.
Issues discussed and resolved included the Article 6 ECHR rights to a fair process of family members including:
- Practical measures to try to re engage a parent who hadn’t attended or instructed solicitors, in time for the final hearing
- How grandparents offering permanent care, who couldn’t access legal aid, could be included meaningfully in at least part of the final hearing.
- How the mechanics of arranging a package of therapeutic support to the child would best enable a father’s appropriate involvement in that therapy at the right point.
- And what type of final hearing was most appropriate, in this case, including whether it was suitable for remote final hearing. Only professional evidence was envisaged and no instructed party objected to the final decision that it would go ahead remotely by skype unless the case facts or wider lockdown relaxations significantly changed so as to prompt reconsideration.
The remote process
The Judge set up his own BT dial me in meeting and was plainly familiar with the process and well versed in managing odd pitfalls with ease, which helped everyone relax. He introduced everyone carefully at the outset; ran through standard warnings and ground rules; welcomed and ‘caught up’ a late joiner (ensuring he didn’t object to my presence); checked who was talking where needed; and dealt easily with the odd accidental talking-over. The hearing was smooth and well organised, with no obvious limitations. The absence of time spent travelling to and then waiting around in a physical court room felt notable.
One family member – the child’s father – was on the call, represented by his lawyer – also separately dialled in to the hearing. His legal representative clearly knew his instructions ahead and actively raised them on his behalf, seeming also to receive his instructions as we proceeded by some other device.
All parties had the opportunity to raise any further issues and no one chose to, except me. Parties had filed position statements and the Judge had clearly read them which enabled the hearing to proceed quickly and smoothly without issues being overlooked. I made the decision early on not to raise the issue of having documents ahead. Partly because I had no idea what documents would be relevant, having no idea what the hearing would even turn out to be. I will perhaps expand my preliminary email ‘wish list’ to the relevant judge ahead to include asking the type of hearing and what documents are being filed as well as giving notice and asking for parties to be alerted.
Objections to me attending / anxieties about permissions to report sought
HHJ Marin explained my presence, and the legal bars on me reporting or breaching confidentiality, setting out the benefits of legal blogging for proper scrutiny and open justice before checking whether any party objected to my presence. The lawyer representing the local authority said there hadn’t been time to get instructions on it from her Head of Service client but didn’t herself object. HHJ Marin was clear that this wasn’t a ground for my exclusion. When later instructions arrived to oppose he re-iterated his decision : in the absence of any identified ground rooted in any disadvantage or detriment upon which to exclude me, and in light of both my proper attendance on behalf of the Transparency Project under the President’s practice direction, and the value of legal bloggers as the eyes and ears ears of the public, including proper scrutiny of those within the family justice system. Legal blogging (he noted) was important work to be encouraged, and this an excellent opportunity for me to observe how remote working was working in practice.
He concluded the hearing by turning to me to check if I wanted to ask or clarify anything. This was incredibly helpful and really felt like a real gain arising from the President’s guidance that encouraged this approach. In all previous hearings I’d really had to butt in just when everyone else was ready to ship out of court, which feels awkward and disruptive. I’d gathered a short-list as we went, of a few key features of the hearing that I really wanted to mention in my blog post – in the most general and non-identifying terms. I asked HHJ Marin for permission to write about them. He had no objections. In fact nor did any of the parties – though the local authority lawyer suddenly wondered if I could summarise what I’d asked permission to report in email form for their Head of Service client in the local authority. In the end I decided to offer blog copy in advance to the LA (and for that matter then everyone else) if that would ease anxiety. I thought it would be interesting to test out whether this would allow me to write a bit more, by simply giving an arm’s length unnamed council that bit of time and control in an unfamiliar situation, where there was no urgency on my part to report and I couldn’t see any reason for objection to the proposed non identifying content.
I duly sent the Judge and legal representatives the draft blog. HHJ Marin proved pro active and available to confirm his permission (by email) to it’s publication after 4pm today, on the basis that no objection had been received by then.
We have a small favour to ask!
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