How COVID-19 is changing law

So the sporting community is agonising about ‘remote fans’ – events taking place behind closed doors - whereas the legal community, in all its magisterial glory, is theorising about the fairness of remote court hearings. It is anticipated that for the next few months, if not years, professionals of all levels and from all sectors will be postulating views on how COVID-19 has affected the industries and businesses that they operate in. Professionals working in the business of law will not be exempt.

Since the third week of March, when lockdown was formally announced, judges, barristers, solicitors, legal executives, trainee solicitors and paralegals have been crossing swords about whether or not it is fair for a contested hearing to take place remotely. Although the existing law already technically provided for such a possibility, it was inconceivable that life-changing matters, such as hearings about the removal of children from their families, would take place in that way.

It has to be said that the criminal, family and civil justice systems, which have earned a perhaps anachronistic reputation for being ‘behind the times’, have responded with impressive speed to the COVID-19 crisis. Remote hearings have been regularly taking place, up and down the country, with varying degrees of success, for several weeks now. Indeed the writer recently advocated in a three-day telephone hearing, which resulted in the temporary removal of five children from a family. Three wise judges in the Court of Appeal will have to decide whether that was fair or not; in this context fairness equates to reasonableness, necessity and proportionality.

Longer, more complex hearings, are more likely to take place on platforms such as Microsoft Teams and Skype for Business. Furthermore, HMCTS has recently proudly announced the roll-out of ‘cloud video platform’ (CVP). Not too long ago, such words and phrases would not have formed even a small part of most lawyers’ vocabulary; now we all use the terms as though it is lawyers who invented them.

Interestingly, debates (let’s call them that), have raged with as much heat and intensity about the merits of a particular platform as they have about the merits of a particular remote hearing. As you would expect, the validity of the argument very much turns on the specific facts of an individual case. For example, does one of the lay parties have learning difficulties? Or do the lawyers themselves face technological challenges? Not all of us have teenagers at home, who have not known anything apart from the age of advanced technology! There is an element of seriousness to that tongue-in-cheek observation.

The results of the so-called ‘Rapid Consultation on Remote Hearings’ have not been published at time of writing, but no doubt the report will make interesting reading, as part of its stated aim is to ‘concentrate on the experience and reaction of court users’. This is especially important, as the family justice system is, in effect, learning as it goes along. On the title page of the Official Guidance to The Remote Access Family Court are the words ‘This document will be subject to regular amendment and re-issue’. We are already on version number four.

In relation to how fair it is for a contested hearing to take place remotely, the Court of Appeal has the final say. It is always for the discretion of the presiding judge. No surprises there then!

Syvil Lloyd Morris, Solicitor Advocate and co-founder
Syvil Lloyd Morris, Solicitor Advocate and co-founder

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