The Transparency Project recently assisted the FLBA tech working party to gather some information and feedback in light of the publication of the key judicial guidance on family justice during the pandemic – ‘The Remote Family Court’. That document (now on version 2), sets out a number of unresolved questions at paragraph 8.3. Our contribution to that exercise focused on elements that fell within our ambit – access to journalists and legal bloggers, recording of proceedings, litigants in person, and information for the public.

Our document is reproduced in full below.

REMOTE FAMILY COURT – PA 8.3, TRANSPARENCY / ACCESS ISSUES

This document has been prepared by The Transparency Project at the request of the FLBA, and attempts to address (on a preliminary basis) the issues raised by Mr Justice MacDonald at paragraph 8.3 k) l) m) and p) of The Remote Access Family Court (Version 2, 25 March 2020)

Urgent consideration needs to be given to the manner in which the recordings of remote hearings are to be downloaded to, and stored in a central location and how a record is to be kept of such recordings to allow future access. (8.3 K)

Recordings of hearings are essential for the purposes of the proceedings themselves (to assist with recall if a hearing is adjourned, for the purposes of appeal, to obtain a transcript etc), and also in circumstances where achieving transparency is compromised or made more difficult by remote working. To the extent that it is more difficult for journalists or other legitimate observers to access hearings live, it is even more important that records of such hearings are maintained for accountability, research and review of the impact of the current crisis on access to justice and fairness. In the longer run it may be that analysis of recordings will be helpful in understanding vulnerabilities and best practice in order to develop and set up a more long term system for remote working.

The current ‘smorgasbord’ approach means that there cannot be a single standardised mechanism for the making, transmission and storage of recordings.

We suggest that simple process should be set out which all hosts and the court can follow, regardless of platform. The bare bones should be :

  • Where a hearing is hosted by a legal representative :
    • The host is responsible for recording and for conveying the recording to the court promptly after the hearing.
    • The host (or their advocate) is responsible for alerting the court to any difficulties that arise during the hearing in respect of recording.
    • Immediately following the hearing the host (or their advocate as appropriate) must send the court a link to the recording of the hearing for download. The subject line of the email must use the format : CASE NUMBER JUDGE DATE OF HEARING (dd/mm/yyyy) RECORDING OF HEARING
    • Each court should provide a specified HMCTS email address for the lodging of recordings (preferably a separate dedicated email account so that nothing gets lost, but alternatively the usual e-filing email address for that court).
    • The court should promptly confirm receipt and successful download from the host -and must check the file to ensure it can be successfully played.
    • The host should delete the recording promptly upon confirmation of successful download – but not before.
    • Where it is possible to select a filename for a recording the format : CASE NUMBER JUDGE DATE OF HEARING (dd/mm/yyyy) should be adopted
    • No other person should be permitted to record the hearing (s9 Contempt of Court Act 1981) unless specifically permitted by the court (e.g. reasonable adjustment under Equalities Act 2010)
  • Where the judge hosts the hearing (for example through Microsoft Teams or Zoom, it will be necessary for the recording to be transmitted to the relevant person at the court for logging and storing. The judge should use the same process as set out in para 4 above.
  • Where the court itself hosts the hearing the staff member responsible for hosting the hearing should follow the same process set out in para 4 above.

Each court should maintain an electronic register of daily hearings and recordings, showing the case number, the date of hearing, the judge, and marking the name of the host and date of receipt of recording (in case of any data loss). HMCTS will need to maintain sufficient cloud storage and set up an appropriate filing system so that recordings of hearings for specific dates and case numbers can be retrieved on request.

Depending on the platform used to conduct the hearing, the recording may be stored either on the cloud or on the local machine of the host (for example Teams stores to the cloud (and the set up of the hearing determines who within the host’s organisation can access that recording), Zoom to the host’s device – depending on settings/package). It is important that the above process is supported to operate relatively quickly by HMCTS to avoid the inadvertent loss of data, and to ensure that the retention of recordings on the devices of individual judges or hosts does not cause difficulties with the operation of those devices. Furthermore, some platforms may permit access to the recording by ALL participants as a default (although the details of when this may be an issue will need to be worked through – so far testing suggests that attendees to a Teams meeting may see the recording in their feed but cannot in fact access it). 

Standard paragraphs for template orders can easily be developed to capture the process above. However, the President could make a standing direction to cover some or all of these points which would avoid the need for the provisions to be recited at each and every hearing.

There are existing arrangements for the storage of recordings of BT Meet Me telephone hearings which are facilitated by the court.

Careful thought needs to be given to how the press are going to continue to be able to observe proceedings pursuant to the rules. In particular, there is a need to consider how cases are going to be listed so as to ensure the press are aware of the existence of a remote hearing and how to request access to the same (8.3 M)

It is critical that there is some effective mechanism to enable the mainstream media, freelance journalists, legal bloggers (under PD36J) and other legitimate observers to attend hearings.

They need to be aware of the hearing, AND to know what to do and who to contact in order to actually attend.

As set out at 5.18 of Mr Justice MacDonald’s document the court list is critical. We suggest court lists for ALL family hearings should specify :

REMOTE HEARING – [VIDEO / TELEPHONE] [platform] [time estimate]

[Host contact email]

Expecting each court listing officer to send lists daily to The Media Lawyer Injunctions Alert Service (formerly CopyDirect) and /or the Press Association may not be feasible or realistic. Further, it would not capture those MSM outlets who do not subscribe to CopyDirect, freelance journalists or legal bloggers. It is unclear whether the Injunctions Alert Service, which is a commercial subscription service, would in any event agree to be responsible for collation and distribution of those lists either to its subscribers or, exceptionally, to freelance journalists or legal bloggers. We are not sure this represents a solution.

However, court lists are published on Courtserve which can be accessed for free at courtserve.net by all the above categories of reporter / media outlet. (Users merely need to register on the database.) Court staff already publish their lists on this facility on a daily basis. The only adjustment that needs to be made is for those lists to include the additional information suggested at paragraph 13 above. The same could be done for the Daily Cause Lists for the RCJ published via the Justice.gov.uk  website.

Given that lists are generally published around mid-afternoon the day before a hearing the only effective way of a journalist being able to arrange access to a hearing is if they have a host contact email. Calling the court is unlikely to assist either the journalist or the court staff, particularly where the court is not the host of the call / link. We think that in practice either the call would go unanswered, or court staff time would be taken up, and by the time the journalist reached the actual host it may be too late to get a message through for them to join the hearing.

The process should be :

  • Journalist / blogger identifies hearing via Courtserve
  • Journalist contacts host, providing electronic copy of press card or other accreditation / ID
  • Host alerts other attendees and judge of request, provides ID documents to the judge and sends invitation / link to journalist / blogger (the ID documents could be made available to advocates on request)
  • Journalist / blogger joins at start of hearing
  • Possibly each party is required to notify the judge /other parties / journalist / blogger of whether the case outline can be provided in advance – if this is uncontentious the judge may approve prior circulation (s12 AJA 1960 reporting restrictions would automatically preclude distribution / publication of the contents unless and until permission is later given in children cases)
  • Any objections etc can be dealt within the usual way at the hearing. Advocates should make reasonable efforts to obtain instructions prior to the commencement of the hearing as to any objections to attendance etc. (This may not be straightforward given the time constraints, but it is difficult to see any way to avoid this in circumstances where it is unrealistic to expect the lists to be made available to journalists or bloggers any sooner than the afternoon before the hearing). In the limited number of cases where these issues arise some flexibility may be required.

Given the volume of remote hearings that will be held in coming months there is probably an additional advantage to the lists containing the host email address – so that in the case of technical difficulties or late instruction any legal representative can easily find a point of contact to enable them to make contact with the host in advance.

Journalists and legal bloggers should be directed to courtserve.net in the first instance.

HMCTS staff should be reminded of their obligations to provide information to journalists under the HMCTS ‘Guidance to staff on supporting media access to courts and tribunals (https://www.gov.uk/government/publications/guidance-to-staff-on-supporting-media-access-to-courts-and-tribunals), adapted of course to meet the current circumstances.

Consideration should be given to the extension of the legal blogging pilot – firstly to enable the pilot to support the important function of observing and reporting on how justice is being delivered at this difficult time and secondly to enable the pilot and the outstanding consultation to have its ‘full run’ before conclusions are drawn.

We anticipate that there might be a downturn on the number of judgments published during this period, bearing in mind that rates of publication pre-Covid had been depressed by judicial workload. Whilst publication of judgments might not be a particular priority for hard pressed judges, the likelihood that a higher proportion of judgments will be delivered in writing than in normal times does present an opportunity to remind judges that publication should be considered. Judges who are preparing judgments in writing for electronic distribution could in many cases prepare such judgments in pre-anonymised / publication-ready format (or in a format that requires minimal anonymisation), and the publication of judgments would serve a particular public interest at present, through making the continuation of family court work visible at a time when other mechanisms for transparency are inevitably compromised, which may reassure the public that family justice goes on and presents an opportunity for the sharing of knowledge and confidence that technical and logistical issues can be overcome (or indeed that highlights where such barriers have been problematic or insurmountable).

Further thought needs to be given to the particular difficulties faced by litigants in person with respect to remote hearings, which problems have not yet been, and may not yet be capable of being fully articulated (8.3 N)

Litigants in Person (LiPs) are arguably disadvantaged in face to face hearings. They are likely to be particularly anxious if having to take part in a hearing without legal representation AND to simultaneously deal with unfamiliar technology. Although some LiPs will be ‘tech savvy’ many parents or parties will not. Some will be illiterate, find text or screen-based communication difficult, or find audio only communication difficult (for various reasons such as a disability) and may have language or communication difficulties.

  • The main issues are :
  • Hardware and connectivity
  • IT skills
  • Other barriers to participation / understanding during the hearing

Hardware and connectivity

Realistically, unless a LiP has a working phone and a reliable phone connection they are going to find it difficult to access a telephone hearing. Where there is a risk a LiP may not have phone credit, courts may need to set up hearings so that a LiP is dialled OUT to.

Realistically, unless a LiP has a working smartphone or other internet enabled device, and a reliable access to wifi (or at a minimum a good 4G signal and adequate data) it is unlikely that a LiP will be able to access a video hearing on any platform.

If they do have the appropriate device it should be possible to produce plain English guides to assist any LiP with basic literacy to connect to a video conference, regardless of platform, by explaining that they will be sent an invitation with a link or login details, and that they need to follow the link and enter any code 10 minutes before the start of the hearing. Court DSOs may need to stand ready to support LiPs to connect.

Test calls will be essential to avoid unplanned adjournments. LiPs should be offered an opportunity for a ‘dry run’ test connection by the hearing host, 24 hours prior to any hearing wherever possible. It may be that they should be directed to participate in such a test connection.

Thought will need to be given to how a LiP will access, view and navigate documents electronically. This is both a hardware and a skills issue. In some cases it may be necessary to make arrangements for a LiP to be sent a hard copy bundle, although some thought would need to be given to whether this gives rise to any hygiene issues. Screen sharing of bundle pages is possible on some platforms (such as zoom) and this may be useful for litigants and witnesses.

Early enquiries should be made by HMCTS in all cases involving a LiP. A standard electronic form could be devised that a LiP could complete in order to inform the court when making listing and format decisions. Such form should gather information regarding, devices, connectivity, confidence levels re IT, literacy, ability to receive and view or print documents.

It seems unlikely that the Assisted Digital programme developed by HMCTS together with the Good Things Foundation, which was designed to provide technical assistance to litigants in using online court processes, will be able to help with remote hearings during the current crisis, since it is largely dependent on face to face guidance.

There may be some hearings where technological challenges mean that the only way to involve a litigant in person in an otherwise remote hearing is to provide a safe space for them in a courtroom, with an appropriately readied device through which they can connect to the judge and other participants.

There may be some litigants in some cases who are simply unable to participate in remote hearings, for example due to disability or their levels of distress.

McKenzie friends

Research shows that LiPs struggle to absorb and retain information provided in a hearing, and that even educated and usually articulate LiPs can fare poorly in a hearing (see for example ‘Litigants in person in private family law cases’, Liz Trinder, Rosemary Hunter, Emma Hitchings, Joanna Miles, Richard Moorhead, Leanne Smith, Mark Sefton, Victoria Hinchly, Kay Bader and Julia Pearce, Ministry of Justice Analytical Series 2014 : https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/380479/litigants-in-person-in-private-family-law-cases.pdf).

There is no reason in principle why a LiP who would otherwise have been permitted the support of a McKenzie friend should not be afforded the support of a Mckenzie friend when the hearing is conducted remotely. This is the case even if the McKenzie can’t be in the same location as the LiP. As with any McKenzie friend in a face to face hearing – if their behaviour is inappropriate they can be ejected.

In the usual way a McKenzie friend can be asked for a verbal confirmation they understand and will abide by the McKenzie Friend guidance, having been sent and read that guidance.

In the usual way they should be able to take a note of important tasks, dates and other information, for later relay to the LiP, and to quietly prompt them through the sorts of ‘back channel’ text based routes that advocates are now using to communicate during remote hearings with lay and professional clients. There is always a risk that a McKenzie friend or some other person might be prompting a LiP (or any other remote party) during their evidence – this risk is neither increased nor reduced by the fact that the McKenzie friend is given authorised access to the hearing and is not a reason to exclude a McKenzie friend from a hearing.

Even when remote, McKenzie friends may be of assistance where they have greater technological confidence / competence than a LiP – for example they may be able to support a LiP to test a link before the hearing, or to work through technological barriers. They can also reassure, calm and support the LiP in any pauses in the hearing or by back channel text communication.

There is some overlap between the vulnerabilities of LiPs and the vulnerabilities and challenges that represented parties may have in a remote hearing. The difficulties faced by an unrepresented party however are similar but likely to be more acute.

During the hearing – general

It will be important for clear ground rules to be set at the start of any hearing (turn taking, muting, privacy, alerting the judge if any technical / sound difficulties etc – and in particular making clear that there is a prohibition on recording or broadcast, which may not be obvious to litigants and which carries a criminal sanction), and for these to be reinforced with all participants consistently. Judges may benefit from a standardised preliminary script that they can adapt or adopt.

It will be important for judges to ‘check in’ regularly with any LiP to ensure they are hearing, understanding / following, and have access to the documents they need. It may be that judges will need to be flexible as regards those present in the room where a litigant is taking a hearing from, for example due to limitations on accommodation or because a family member is required to be on hand to offer technical support to a litigant with a lack of IT competence (or who is using a device belonging to a family member).

Regular breaks will be essential for all participants, particularly LiPs. Remote hearings are tiring as more effort is required to focus and process information.

Judges and professionals need to be aware that the difficulties litigants in person face may be exacerbated by hearings being conducted remotely, and that a consequence of the use of technology is that apparently inconsequential behaviours may have a magnified or unexpected impact upon a litigant in person (and indeed on a represented lay party) (see Celia Kitzinger’s 29 March 2020 post on the Transparency Project blog – Remote Justice – A Family Perspective, https://www.transparencyproject.org.uk/remote-justice-a-family-perspective/ and Malvika Jaganmohan’s post of the same date Remote hearings: a gulf between lawyers and lay parties?, https://www.transparencyproject.org.uk/remote-hearings-a-gulf-between-lawyers-and-lay-parties/).

Urgent consideration is needed of how the new default position of remote hearings is to be communicated to the public at large (8.3 P)

Litigants involved in existing family court matters, particularly but not exclusively those who are unrepresented, need to be provided urgently with information about what is happening in family courts generally, how it might affect their case, and how they can progress their matter if the court building is not open. Many have forthcoming fixtures that they have been waiting months for. Some families will in coming weeks be thrust into family court proceedings where a child protection emergency or irresolvable dispute about child arrangements crops up – their expectations need to be managed.

There is quite limited information on the gov.uk site that we can identify which is directed to litigants in family proceedings, but on 27 March 2020 some useful guidance was published, which we commend :  ‘A Guide on Joining Court Hearings by Video Call or Phone’, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876566/Guide_on_joining_court_hearings_by_video_call_or_phone_27_March_2020.pdf.

We suggest :

  • Greater use is made of gov.uk and associated sites to publicise the fact that hearings are now mainly being conducted this way. Clear, concise Plain English notices should be posted on all official sites which the public are likely to be directed to or consult on family justice matters.
  • that each family court information page on Courtfinder should incorporate this clear notice and a link to the guidance above.
  • That a clear notice is placed on the judiciary.uk website and that regular tweets are sent through HMCTS and Judicial twitter channels.
  • Short explanatory slide/text based youtube videos could be produced and published on the MoJ YouTube channel. Facebook ads could be placed.
  • Other sites which parents or parties are likely to visit could be provided with the banner and requested to display it on their website. Professional organizations such as Resolution, Law Society and FLBA, as well as commercial websites could be encouraged to signpost to this material.
  • Whilst the linked material goes some way to meet the need, online plain English digital ‘leaflets’ or information pages / FAQs should be produced (and regularly updated), explaining to litigants (whether represented or in person) how they can join and participate in a remote hearing, what they will need in order to do so, what support is available and how they can ask for adjustments or a face to face hearing. Such guidance would necessarily have to be quite generic, particularly given the current ‘smorgasbord’ approach, but is vital to reassure and support litigants to access justice at this time, when even their representatives may be unable to offer direct assistance. The Transparency Project would be happy to assist with the development and dissemination of such materials. They need to be in a format that parents can share on social media platforms. Initial thoughts about what such material might look like (rough workings) are in appendix 1.
  • Public awareness might be enhanced if mainstream news reporters made a point, initially at least, when reporting such cases of adopting a formula such as: “in a hearing conducted remotely / by telephone or videolink to which media reporters were given access under new rules”.

Further reading

Lucy Reed, Chair, The Transparency Project, 29 March 2020

Appendix 1: Public Information about Remote Court Hearings

To avoid people getting ill from corona virus infection, more and more court hearings are being conducted by video link or telephone.

If you are involved in a case that is going to court, you will probably be asked to attend the hearing remotely. This means you will not be going to a court building. Instead, you will join the Judge and the lawyers and other parties in the case for a hearing by telephone or using a video chat service like Skype or FaceTime.

There are a number of different types of video chat or conference call systems. They include Microsoft Teams, Zoom, GoToMeeting and others.

You will be told in advance how to join the hearing, whether by telephone or by a video chat service. You will be sent an invitation from the person hosting the session.

They will send you details of a number to dial, or a website link, and a code number to join the session. Although each service works slightly differently, you will be sent details of how to join.

If you get a letter or email, there will be a number to ring or an email address to write to if you need to ask any questions.

If you want to ask someone to help you with the telephone or computer, just explain this to the person hosting the court hearing.

When the hearing begins, the judge will make sure everyone who is supposed to be joining the session has joined and can hear what is going on. They will make sure you can see any documents or papers on your screen if there is video, or that they are explained over the telephone.

It is all a bit new but everyone will try their best to make this work.