These are unprecedented times, there has been a need for all of us to adapt to the changing landscape we find ourselves in. This has been equally applicable to the Family Court and the Court of Protection, both changing to accommodate remote hearings relating to children and vulnerable adults.
The Family Court
The President of the Family Division, Sir Andrew McFarlane issued guidance on 19th March 2020, with a clear principle that the Family Court is “keeping business going safely.” Following the Prime Minister’s instructions for the nation to “lockdown” on 23rd March 2020, Mr Justice MacDonald published further guidance on remote hearings. The latest version dated 25th March 2020 can be found here. Finally additional guidance on protocols in civil remote hearings can accessed by clicking here. All these guidances have been extremely helpful in ensuring there is ongoing access to justice together with ensuring safety for all.
Hearings will be undertaken remotely by either telephone or video conferencing. The Family Procedures Rules 2010 already permits family courts with the ability to use technology, where it is considered appropriate to do so. Provisions have been further extended in s.53 of the Coronavirus Act 2020.
Court of Protection
Mr Justice Hayden, Vice President of the Court of Protection, issued guidance on 31st March 2020 on remote hearings in the Court of Protection, which can lawfully sit with participants (including judges) remotely. Further S.45 of the Mental Capacity Act 2005, provides that the Court of Protection “may sit at any place…” Additionally the Court of Protection Rules 2017, (3(1)(d)) provide that the court may “hold a hearing and receive evidence by telephone or any other method of direct oral communication”
This guidance very helpfully recognises the importance to ensure that those who lack capacity do not become more disadvantaged than their capacitous counterparts. Requiring all those involved and at all stages of the hearing, to continue to evaluate whether fairness to all parties is being achieved. The clear message is that “fairness cannot be sacrificed to convenience.”
Where there is a need for a judicial meeting with the person/vulnerable adult, this should be recorded and made available to other parties.
Where the person/vulnerable adult lacks capacity to conduct the proceedings and he/she is represented by a litigation friend, there is no need for the vulnerable adult to be in attendance at the remote hearing.
Its business as usual
A recent example of how effective a remote hearing can be was demonstrated in the case of A Clinical Commissioning Group v AF & Ors [2020] EWCOP 16, a contested three day final hearing on the issue of whether end of life arrangements should be made for an elderly stroke victim. The case involved five parties, 11 witnesses, including four expert witnesses, with the press also present and was undertaken completely remotely, using Skype in the Court of Protection before Mostyn J. The case was a first in that it permitted full and fair participation by all parties, without risking the health of anyone involved in the court process.
Look out for our next legal blog post focusing on the importance of your role prior to and during the remote hearing.