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The IBA’s response to the situation in Ukraine
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Never before has the country or the world found itself in such uncertain and unprecedented times. While Covid-19 will no doubt have a momentous impact on access to justice generally, it is likely that the most vulnerable in society will be effected the most significantly.
With the country on lockdown victims of domestic abuse are at an even greater risk than usual. Refuge, the UK’s largest domestic abuse charity, has reported a 25 per cent increase in calls to its helpline while access to its website increased by 150 per cent during the initial stages of lockdown. Women’s charities have called on hotel chains to open up their rooms to those fleeing from abuse and the government has pledged to provide an additional £2m to bolster domestic abuse helplines and online support.
The family court does, however, play a vital role in protecting victims of domestic abuse through the use of injunctions set out in the Family Law Act 1996. Under the Act the court has the power to allow occupation of a property to one party, to the complete exclusion of the other, alongside provisions to prevent any contact whatsoever between parties, to include indirect contact by telephone, text message and social media. These orders can and do save lives, giving the victim power and security to remain in their home, safe in the knowledge that a breach of these orders can lead to a fine or imprisonment.
But with the Central Family Court closing its doors completely, long waiting times for hearings elsewhere and some antiquated views in respect to remote hearings, how are victims of domestic abuse supposed to access this service at their most vulnerable time?
The Court’s answer thus far has been through the use of remote hearings by telephone or video conferencing facilities. Guidance was issued by Mr Justice MacDonald on 23 March 2020, which has subsequently been updated several times. It urges the courts and practitioners ‘to remain committed to the delivery of justice in circumstances which, only a week or so ago, would have been considered unimaginable’. The guidance suggested that all hearings up to and including final hearings would be dealt with as usual, seeming to suggest that it would be business as normal in the family court. In an update, however, it was acknowledged that this may not in fact be the case; with the guidance suggesting that whether a hearing takes place is down to ‘judicial discretion’, opening the door for cases to be simply adjourned off into the future.
Remote hearings can be an appropriate tool for the court, in fact, in the five days following the Prime Minister’s announcement of the introduction of social distancing measures; Mostyn J conducted a contested hearing in the Court of Protection dealing with complex issues as to whether end of life arrangements should be made. The experience was described as ‘highly effective’ by the legal professionals whereas one of the family members involved described it as a ‘second rate hearing’. The impact clearly being felt by those with a much more emotional connection to the proceedings.
There is something to be said about the grandiose nature of attending court in person. The large and foreboding building, the silent court room, the position of the judge peering down, the costumes, the language and the spectacle. All of that brings with it a sense of occasion, a sense of importance and a sense of security for many, particularly the most vulnerable litigant. The mere presence of the judge, seeing you, having them acknowledge your concerns and giving a judgment can provide an applicant with the reassurance they need; ‘they’re listening to me, they understand what I am dealing with’. For the respondent; a stern voice of authority, judging their actions, deeming them sufficient to warrant restrictions to their lives with potentially severe consequences in the case of a breach.
Some, if not all of this, is lost if the parties are perched alone on the end of bed in front of their laptop or on the end of the phone. The psychology of court attendance is gone and somehow it feels more detached, less serious, less important. Of course the theatre and drama must be outweighed by the court functioning, even at a more limited level. Orders regardless of how or where they are made are still orders and breaching them carries the same consequences but it will be interesting to assess whether there is an increase in the number of orders breached and whether this can or should be linked to the parties not physically attending at court.
Turning to the practical issues of remote hearings; a considerable number of applicants in these applications will be litigants in person, unaware of the legal aid which may be available to them, who simply press on with the application themselves.
In his updated guidance dated 16 April 2020 Mr Justice MacDonald provides a helpful overview of the court’s progress and additional advice to practitioners in respect of conducting remote hearings. It also seeks to sing the praises of those who have successfully managed a case remotely. It does however acknowledge the limitations of technology particularly in respect of litigants in person, many of whom will be without access to video conferencing software or will lack the IT literacy to set up and manage these programs. Even a represented client would have to attend from an alternative location to their solicitor and may struggle to access the software. Mr Justice MacDonald is encouraging the courts to give regard to these people when hearings are listed.
It is quite likely in the current situation that the applicant in an injunction application is living with the perpetrator; any application would therefore need to be made without notice so as not to tip them off. The applicant would then need to ‘attend’ the hearing remotely, away from and without raising the suspicions of the other party. This may therefore need to be done during their allocated period of outdoor exercise or during a trip to the supermarket or when the other party is engaging in these activities. The court must therefore be mindful of timetabling, ensuring wherever possible that hearings take place on time to avoid the applicant coming into difficulties.
The guidance issued also seeks the assistance of the local authority to provide, social distancing permitting, spaces where applicants could attend to conduct these hearings. They are encouraged to assist in providing the necessary equipment such as a laptop or tablet or even just give the applicant access to Wi-Fi. Some courts do remain open: judges and court staff are still working and where absolutely necessary and with the safety of its staff at the forefront of its mind, the court is able to facilitate attendance of a litigant in person in court.
The court has to be mindful of litigants in person and vulnerable individuals, accepting that the court process may be an alien concept to begin with, not least with the further introduction of unfamiliar technology. Most experienced advocates were, pre-Covid-19, adverse to the prospect of using Skype or Zoom, not only for the possible technical glitches but for the added difficulties it brings with lack of social cues, difficulty in interpreting body language and understanding when to speak. Judges are being encouraged to take a strong lead in this, advising that microphones are muted, encouraging parties to introduce themselves before speaking and not interrupting each other. Judges are also instructed to keep referring back to litigants in person, ensuring that they understand the progress of the case and the consequences of any decisions.
It is promising that the guidance is there, thought and consideration has been given by the court for these very vulnerable people. In guidance issued by HMCTS domestic violence cases have been listed as one of the very highest priority categories of cases which must be dealt with by the court. Simon David, the Law Society President, however, feels more can be done, urging the government:
‘to provide alternatives for those who are locked in with their abuser and offer further support for those who have disabilities or face language issues when access to advice services and physical courts is limited.
‘Making non-means tested legal aid available for domestic abuse cases would give victims the legal support and access to justice they so desperately need.
‘The government should also relax the domestic abuse gateway regulations during the Covid-19 outbreak so that solicitors can certify an individual is a domestic abuse victim and allow them access to legal aid. Many victims rely on evidence from a doctor which is obviously difficult to get in current circumstances.’
This lockdown period will be very dangerous for victims of domestic abuse and now more than ever they will need the support of practitioners, the court and the government to help them through this very difficult period. It seems that important steps have been undertaken, however, it is clear that more can be done to ensure that victims are able to access the services.
Refuge, ‘25% increase in calls to National Domestic Abuse Helpline since lockdown measures began’, press release, 6 April 2020, available at: https://www.refuge.org.uk/25-increase-in-calls-to-national-domestic-abuse-helpline-since-lockdown-measures-began/, last accessed 6 June 2020.
The Remote Access Family Court, Mr Justice MacDonald, Version 1, 23 March 2020, available at: https://www.judiciary.uk/wp-content/uploads/2020/03/The-Remote-Access-Family-Court.pdf, last accessed 6 June 2020.
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