Remote hearings: 'mute the misbehaving'

A snap consultation on remote hearings in the family courts has been launched, while separately there are reports of litigants in remote hearings verbally abusing judges.

Senior justices said this week they will be asking their technology staff to “explore whether there is a facility for people who misbehave to be muted”.

The rapid two-week consultation into the family justice system, announced by the president of the Family Division Sir Andrew McFarlane, is being undertaken by the independent Nuffield Family Justice Observatory (NFJO).

The NFJO will gather evidence from a wide range of individuals and professionals such as the judiciary, solicitors and counsel, Cafcass workers, court staff and social workers.

Guidance informed by the research is then expected to be issued early next month.

Consultation questions relates to both private and public Children Act cases and includes all ranges of hearings. It will also take into account existing relevant research.

The consultation closes on 28 April and can be found here.

However, senior judges have acknowledged the limitations of national guidance in a message about remote hearings, which was originally circulated to judges sitting in the civil and family courts and has now been made publicly available.

The Lord Chief Justice, the Master of the Rolls and Sir McFarlane said: “National guidance is a blunt instrument and cannot take any account of the strengths or weaknesses of local resources.”

They praised the courts and tribunals for rising to the challenge of conducting remote hearings in the prevailing circumstances “in a remarkable way”.

They confirmed that across all jurisdictions some 40 per cent of all hearings have continued, some in the traditional way and others remotely.

In the three weeks since the lockdown began, the senior judges commented that “we have all learned a good deal about remote working” and they are now “taking stock”.

They confirmed that from next week the bespoke HM Courts and Tribunal Service (HMCTS) video hearing facility will have a greatly increased capacity offering better all-round quality than Skype and should enhance the ability to conduct remote hearings.

But they stressed that a fair hearing must be provided, whatever the form used to conduct it.

However, it was not all positive feedback, with reports of “tiring” technology, particularly in long hearings, and problems with the availability of papers.

Judges were also told: “Over the course of the last few days we have been informed of a growing problem of participants not respecting the reality that although they were not physically present in a court room, they were taking part in court proceedings with all the constraints on behaviour that implies.

“There have been instances of judges being shouted at by litigants.”

“No judge should be expected to endure abuse on the phone or laptop”, they said.

“That itself may show that some types of cases have been attempted which are not suitable for hearing in some ways remotely.”

John McKendrick QC, who recently represented one of the parties in the first ever Skype trial completed last month, said that it is essential to the success of remotely delivered justice that all parties respect the solemnity of the judicial process.

He commented: “It’s concerning to read some litigants have abused a remote platform to go as far as shouting at the judge.

“It’s the role of all involved to act as if they were in a court room and to ensure when they are exercising a professional role they advise clients and witnesses of the need to respect the remotely delivered process of justice.”

Civil and family judges were told that a “short script” would be provided for the to read at the beginning of remote hearings – presumably as a warning to litigants and participants to behave.