Video hearings and family courts

20160419_174504A video hearing scheme

 

A number of strands of family law and modern court practice coalesce in the civil proceedings default judgment video-link set aside scheme (Civil Procedure Rules 1998 Practice Direction 51V – the video hearings pilot scheme .

 

Family lawyers: please do not stop reading…. There may be important points which emerge from this scheme which can affect witnesses and parties in family courts. Video hearings can be an important subject in a variety of family proceedings. Four examples amongst many follow:

 

  • For those concerned with transparency in family courts video hearings, if both (or more) parties are on video, then attendances at court (eg of legal bloggers and press) are like to be impossible; unless special arrangements are made as PD51V
  • Especially in domestic abuse cases video link evidence may be critical for the allegedly abused party.
  • For those – witnesses and parties – who cannot afford to travel to court, or are disabled or elderly, video link hearings will be essential. I am dealing with a pro bono unit case now where a wife of limited means is threatened with loss of her home because a Family Court district judge made an order, in her absence, that she must sell her it (yes, really). The judge made no enquiry as to how she could travel 100 miles (and more) to court. (Yes she has filed her own notice of appeal; but she remains intensely worried.)
  • In another case of mine a 13 year old was interviewed by the judge. This was done by judge alone, with only the child’s solicitor present: nothing unusual in that. If the child was OK with it, is there any reason why the parents could not have seen the meeting on video? Any appropriate comment could then be made by parents in the course of the hearing of either party’s applications.

 

In passing it may be noted: in a recent First-tier Tribunal (child support) case I act in, a tribunal judge automatically offered a mother who was distant from the hearing tribunal, that the hearing should be adjourned so she could attend by video-link – a solution which did not seem to occur to the district judge in the Family Court sitting at Bedford.

 

What is the scheme?

 

Writing in New Law Journal on 29 November 2018 my colleague Stephen Gold said of the scheme:

 

‘The plan for Gogglebox civil justice has not been derailed even by Brexit. Proof comes in the form of a 12-month video hearing pilot scheme which starts today under PD51V. It will operate out of Birmingham and Manchester only and be confined to applications to set aside default judgments where the parties have consented to the application proceeding by way of a video hearing. Make up will be supplied free of charge by HMCTS to the judge and parties but not legal representatives who are regarded as being overpaid. Only joking about the make-up. The rest is deadly serious.’

 

The pilot scheme is limited, for the present to setting aside judgments made in default judgment proceedings (CPR 1998 Pt 12: not a very wide span of proceedings). It is the conduct in court of any proceedings which is important.

 

Paras 1.3 and 1.4 put statutory flesh on Stephen Gold’s commentary. It sets out the important detail of how the scheme is intended to operate:

 

1.3 All parties or their legal representatives will attend the hearing of the application, using the video-link, from suitable IT equipment and will see and hear, and will be seen and heard by, each other and the judge determining the application.

1.4 Hearings will be held in public. Members of the public may access a hearing by attending the court in person and will see and hear the judge and the parties or their legal representatives on a screen in the court room.

 

So yes, the court provides what amounts to an open court hearing….

 

Video schemes: private family hearings and open justice

 

My worry is that HMCTS will be quick to say, if these schemes are extended to family courts: ah yes, but almost all family hearings are in private (FPR 2010 r 27.10). There is no need for the taxpayer to go to the expense sent out in para 1.4. True; save that legal bloggers (and occasional others) and certain journalists are entitled to be in court (FPR 2010 r 27.11(2). That right will go – or will be diluted – if video hearings are set up without the additional rights to open court hearing in para 1.4.

 

Video link hearings and taking of evidence are here to stay. Rightly (in my view: see eg my client who at present has lost her house) video assistance to courts will increase. As video assistance increases: do those of us concerned with family courts transparency need to keep a weather eye on developments elsewhere, eg in relation to PD51V?

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