‘A fair hearing’ and an order in a time of Corvid 19

A message for civil and family proceedings

In a Message for Circuit and District Judges sitting in Civil and Family from the Lord Chief Justice, Master of the Rolls and President of the Family Division dated 9 April (‘message from the MR etc’) the top three civil law judges – it is so good to see them working together – suggests ways in which justice may be delivered in a lockdown; and asking for views from judges (to whom the message is addressed).

A massive variety of ‘guidance’ and other paperwork has been issued from the President of the Family Division, from local courts and other sources over the past four weeks, on the subject of conduct of remote hearings. To pick a way through all is not easy. Perhaps it sometimes hinders rather than aids delivery of a fair trial. That is a question for another time.

For now the emphasis must be on a fair hearing. The message from the MR etc says, on the subject of remote hearings:

The overarching criterion is that whatever mechanism is used to conduct a hearing must be in the interests of justice, that issue being assessed by reference to the unusual circumstances that prevail and the unhappy alternative if a hearing is adjourned. Every hearing we conduct in whatever form must provide a fair hearing.

This is surely how the conduct of a trial or other hearing should be judged; and, of course, with the overriding objective in Family Procedure Rules 2010, Part 1 and European Convention 1950, Art 6.1 well in mind.

‘Business priorities’

More or less in parallel, and addressed only to users of the family courts the ‘Summary of Family business priorities previously agreed with the President of the Family Division: April 2020’ has emerged. It comes for HM Courts and Tribunal Service (HMCTS) and its ‘Coronavirus update’ department. It categorises a hierarchy of family proceedings orders to be made by the courts: ‘work that must be done’, ‘work that will be done’ and ‘work we will do our best to do’ (meaning perhaps that it may not ever be done?). The distinction between something that ‘must’ be done and something that ‘will’ be done, in context, is not clear. The issue of orders will be dealt with according to these priorities.

‘Work that must be done’ is all urgent orders, including but not limited to a range of children orders such as ‘public law children’, interim care and emergency protection orders, secure accommodation orders (together meaning Children Act 1989 Parts 4 and 5); a range of Children Act 1989 Part 2 orders; child abduction orders (including Tipstaff orders); domestic abuse applications (Family Law Act 1996 Part 4) and other emergency personal protection (such as forced marriage protection order applications etc); and the a section called ‘Divorce – urgent applications and decrees absolute’. ‘Work that will be done’, so far as that definition is different from the previous list, includes ‘Gatekeeping and allocation referrals – care; Gatekeeping and allocation referrals – private’ and ‘Other family care orders/documents/emails’.

Finally, the less urgent - ‘Work that we will do our best to do’ is categorised, a little inscrutably (and as relevant here) as:

  • Other family private law orders/documents/emails
  • Adoption orders
  • Divorce
  • Financial remedy

If you add Children Act 1989 Part 2 proceedings (not comprised in the second category) then this little list comprises a substantial proportion of the orders issued by the Family Court. Delay is likely only to be a problem if enforcement of an order is needed: for example, a child arrangements order (if the lockdown lifts a little) or to enforce a financial relief order such as by charging order or application to commit.

Trial, fairness, and what is ‘within a reasonable time’?

The message from the MR etc ‘offers [three] observations’:

  • That hearings with the judge and all participants there only remotely ‘would be unlikely to be appropriate for many cases’;
  • In the ‘family context’ where cases have to be dealt with urgently, a remote hearing is ‘unlikely to be appropriate’ in children’s welfare cases; and
  • That said, for case management hearings or where a hearing can be on ‘submissions only’ then these can be done remotely.

I go back to basics. The European Convention 1950, Art 6.1 requires that an applicant has a fair trial or ‘hearing within a reasonable time’. Courts must comply with that principle says Human Rights Act 1998, s 6(1). In a time of Corvid 19 pandemic the terms ‘reasonable time’ must import a breadth of time which must be more flexible and much more forgiving than at otherwise normal times. The applicability of terms like ‘fair hearing’ and ‘reasonable time’ can be seen as subjective. Looked at from either end of the telescope – the civil servant or judge, on the one hand, or the punter (and legal representative, when means or pro bono help permits), on the other – each must be seen in different ways. ‘Fairness’ is an absolute; ‘reasonable time’ can, within reason, be elastic.

The criterion surely for all work undertaken in the family courts is as the message of the MR etc (above) says: that operation of the family courts should be to dispose of all business – prioritising the urgent, of course – ‘in the interests of justice’. Enforcement of orders occurs only rarely; but it does happen and it is part of the family courts system of delivering justice. Remoteness, and how it will develop alongside fairness in family courts, is a subject which must develop on the back of HMCTS experience with this virus and its consequences.

David Burrows

Written by David Burrows

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