Fair and remote hearings
Two subjects loom in these coronavirus times; practice directions and guidance; and how to manage fair (public or private) hearings. A debate about online court hearings can follow later. I wrote a first post on practice direction here and ended by recalling that formal practice directions can be made only by the President of the Family Division in consultation with the Lord Chief Justice (Constitutional Reform Act 2005). Local practice guidance may be well-meant; but on what statutory or other authority can it operate or be enforceable?
For example how does a party respond to HHJ Dancey’s minatory direction (for Dorset: as is the picture above) that ‘it is incumbent on all parties to try to resolve cases…; and that ‘parties may be asked to explain what steps they have taken to try to resolve their case’; or HHJ Wildblood’s direction in relation to ‘private law’ (ie Children Act 1989 Part 2) proceedings as to who – on his direction – ‘must’ prepare court bundles and that ‘There must be a directions hearing before the judge of trial at least 48 hours prior to the substantive hearing at which, among other things, directions will be given as to the arrangements for the hearing’.
One of the golden rules of rule-making, or indeed of making a court order, is not to make the rule or order if it cannot be enforced. What are the rules for these directions if they are not complied with? For example the duties imposed by HHJ Wildblood as to who is to take responsibility – namely HMCTS staff – where both parties are unrepresented (para 6(iii):
Where neither party is represented, the court office must liaise with the judge of trial at least 72 working hours before the hearing and the judge must give directions for how the hearing is to be conducted. In default of specific direction from the judge the court must arrange for such hearings to be conducted by telephone.
Will the court staff which are intended to comply with these directions, do as they are told; and if not, what do I as an unrepresented parent, do about it? Who at the court is personally responsible; and what is their email address and telephone number?
‘A fair trial’
Courts, as a public authorities, must not act in a way ‘which is incompatible with a European Convention right’ (Human Rights Act 1998 s 6(1)). The right in play here is Art 6 which says:
Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The main essentials of a fair trial at common law are procedure and how the judge determines the issues before the court. Each side must have notice of any steps in the proceedings and must have a fair chance to adduce all relevant evidence before the court. The crucial aspect of a fair trial is that the judge (or magistrates) impartially hears both sides (audi alterem partem).
If justice in times of coronavirus achieves all that distantly, then the first ‘fair trial’ part of Art 6 is achieved. Judgement can be given. The question of ‘publicly’ will then be the challenge for court administrators. Hearing in ‘a reasonable time’ – an often forgotten component – can be worked towards.
Administration at times of coronavirus: a team and a leader
So with technological ingenuity, openness can be achieved; but what about administering all this. Here we come back to all the local practice directions.
Imagine first that you are running a difficult case or trying to win a team sport (rugby, football etc). In each case it is important to have one person making all the strategic decisions: leading counsel, a senior solicitor, the team captain. Some actions, even minor decision making, may be delegated to, for example, lesser lawyers or paralegals in the difficult case. Their work is tactical on sections of the work in hand (preparing statements from witnesses, putting together a bundle and so on). Strategy remains with the head lawyer in the case of the heavy litigation.
So too it is with running a series of family courts. You cannot have individuals in separate courts putting up procedural rules. That is a matter of strategy for the leading person. Still less can they be putting out guidance without clear legal authority (as mentioned here). That is a matter for compliance with the law and calls for what Parliament permits (Constitutional Reform Act 2005).
It is also important to reflect on what judges are for. They are there to determine claims or applications before the court. They are not there to administer the courts in which they sit. That is, or should be, for court administrators. It is a basic question of separation of powers. A judge is judiciary. That judge’s power is separate from the executive (HM Courts and Tribunal Service: ie court administration). And it is separate again from legislature (in this case the making of rules and any necessary practice directions/guidance). In an individual case the judge is responsible for case management; but for generalities it should be for the ‘legislators’ (within their own powers: Courts Act 2003 s 75) to make rules and practice direction.
President of the Family Division
The President of the Family Division fits uncomfortably into all this. Just as did the Lord Chancellor before the Constitutional Reform Act 2005 the President spans three powers: he is a judge; he is a legislator (see practice directions below); and he is part of the family courts administration. The powers need separation; but needs must for coronavirus times. One President cannot long-term do all that is required by his present job description.
For now, the President is the strategic head of family courts (per the illustration above). He, and only he (with the Lord Chief Justice), has the power to issue practice directions (as explained in Part 1). That, in a sense, is a legislative and an administrative role; save that once practice directions are made it is for HMCTS and us and parties to litigation to operate them.
Lucy Reed touched on the practice direction point in a recent blog of the recent guidance issued by the President of the Family Division on remote and face-t-face hearings Guidance issued by the President of the Family Division: ‘There is other guidance in different jurisdictions and lots of (inconsistent) local guidance too), but it’s just guidance, and it makes clear that decisions will be made on a case by case basis i.e. it anticipates that some face to face hearings may still take place.’
The issue remains: if practice directions – especially local practice directions – do not comply with the law, they are not lawful. Whoever made the practice direction – judge or anyone else – is acting as public authority decision-maker (ie a civil servant). They – judge or other administrator – is subject to the usual administrative law rules. This was the point made by Lord Wilson in NY (A Child)  UKSC 49,  3 WLR 962 (30 October 2019) referred to in Part 1. It is the law which must be followed (as set out in the common law, in Family Procedure Rules 2010 and in properly made practice directions). The law always trumps a practice direction of practice guidance.
27 March 2020