Family Law

Special measures have long been available to help victims of domestic abuse attending court.  However, the move towards remote and hybrid hearings as a result of the Covid-19 pandemic has posed new and unique problems in this area.  The Family Justice Council has now published a set of comprehensive guidelines to assist everyone involved in the family justice process to implement special measures in the new digital era. 

What are ‘special measures’?

Special measures are changes to the court process that can be requested by those attending a court building to participate in a case.  The most common measures aim to keep the parties separate from one another by way of different entrances and exists to the court, separate waiting rooms and screens behind which they can give evidence without fear of intimidation by the other party. 

The new report aims to set out what can be done in place of the typical special measures to avoid remote and hybrid hearings being a harmful environment for victims of domestic abuse.  Remote hearings take place with all the parties online, usually in separate locations, whilst hybrid hearings take place with some participants in the courtroom and some online.

Why are the guidelines important? 

Remote and hybrid hearings are judged to have worked well in a large number of cases and look set to remain with us for some time yet, even with the Covid-19 crisis easing, and they may remain a permanent fixture within the court system. Enough time has now passed to allow the effects of remote hearings on their participants to be properly considered and judged. 

At first glance, a remote hearing might seem like a totally safe environment: the parties remain in their own homes, in most cases entirely separate from one another and in comfortable surroundings.  The abuser may be many miles away at the end of a telephone line or video call.  However, not all is as it seems.  It is a widely acknowledged fact that even where proceedings deal with incidents which took place some time ago, revisiting the incidents in forensic detail can have a re-traumatising effect on many victims and the proceedings can be used as a further form of abuse (though this is not always the case).  The victim’s home, their safe space, becomes visible to the abuser at the other end of a videocall and from what they see, the abuser may be able to determine information about their victim such as location or the existence of a new partner. 

The issues do not just affect the victim: other members of their household may be exposed to the proceedings, for example children who are the subject of proceedings may be in the next room and hear the comments made by the judge, the parties or their lawyers. 

A huge number of cases that come before the Family Court involve allegations of abuse and so the proper administration of justice demands that potential problems in these cases be addressed.  If they are not, then parties may not be able to give their best evidence and cases may not be dealt with as efficiently as they might otherwise be. 

Summary of considerations and recommendations

The report, which is endorsed by President of the Family Division Sir Andrew McFarlane, sets out the approach each court should take:

• A flexible approach is important to fit the needs of the relevant parties.  Each will have different needs and feel a different impact from the proceedings. 
• Children and the impact upon them should be a vital consideration.
• Consideration should be given to matters in advance of the hearing – a last minute rush or change of arrangements is unsettling in itself.

Some of the key recommendations are as follows:

• Where a party is represented by a lawyer, their lawyer should join the hearing first to ensure the parties are not left alone together on the telephone or videocall.  Where a party does not have a lawyer, the judge or a member of court staff should be first on the call for the same reason.  When the hearing ends, the judge or a member of court staff should ring off last.
• For hybrid hearings, where a victim may be in the courtroom with other participants on a telephone or video link, their lawyer (if they have one) should accompany them.
• Where a party is not legally represented, they can be encouraged to bring a supporter with them.  A supporter must behave appropriately though – they cannot speak on behalf of their friend/relative and must keep the content of the hearing totally private. 
• To keep a safe space at home private, the court should provide guidance on how to blur or de-personalise a background. 
• A victim can be permitted to join by audio only or to deactivate their video screen when the other party is giving evidence.  In some cases, victims may be permitted not to attend at all, giving evidence to a lawyer by telephone instead. 

The full report, with all the considerations and recommendation, can be found here

Perceived problems with the guidance

Whilst Family Justice Council’s report is extremely welcome, there remain some potential problems with the suggestions within it. 

As the report itself acknowledges, there is no ‘one size fits all’ approach and flexibility is needed.  Some measures that a party would consider essential may be highly unusual.  It may be difficult for a party to obtain such a measure if it seems to the court to be too difficult to implement or vary too widely from the recommended courses of action within the report.  Could the administration of justice be slowed down by challenges to the validity of a decision if unusual special measures are put in place, or if they are rejected by the court and subsequently a decision is made which is adverse to the person who requested a special measure?

The digital platforms used for remote and hybrid hearings pose their own unique challenges, not least how to use the platforms and whether all the parties remain connected at all times during the hearing.  To have parties join and leave or to use then turn off video feeds could potentially disrupt the flow of a hearing and lead to parties giving evidence which is far from their best.  It is important that the parties in the process feel they have had a fair hearing and an opportunity to be heard.  If they leave the remote or hybrid hearing feeling this is not the case, it could be hard for them to feel the matter is closed and the terms of an order honoured.

Finally, there is a strong thread throughout the recommendations and suggested approaches that puts the onus on the court to assist parties.  The Family Court system has been under immense pressure in recent years and this has increased enormously as a result of the pandemic.  The Court has done a good job of adapting but it is difficult to imagine how, without significant investment, existing staffing and resource levels can give the time and attention required to the special measures victims of abuse need– especially if measures are adapted to each person’s individual circumstances and needs, as recommended by the report.