A deadly virus ravaging the world has managed to do in 24 hours what no judge in the history of the family courts has been able to do in over a decade: modernise the family courts.

New guidelines issued by Mr Justice MacDonald, a high court judge who specialises in child protection, call for the mandatory use of online video streaming platforms and electronic bundles in order to protect parties to hearings from the novel Coronavirus.

MacDonald has asked that the measures, which come as the UK government puts social distancing regulations in place to contain the virus, be implemented without delay after several successful remote hearings for child welfare cases were conducted.

Input from forward-thinking family judge Justice Mostyn and others have been combined to create the current rules inside the Remote Access Family Court guidance.

The guidance is a working document, meaning that it will be continually revised and updated when needed.

The document explains that the family courts continue to be fully operational during the outbreak, and offers the legislative background which enables the courts to conduct hearings using online platforms like Skype and Zoom.

The guidance also highlights the challenges the courts face in trying to ensure the hearings are carried out online, including getting judges to use online conference platforms, issuing applications and orders and recording hearings. Those who use technology will be aware that all of these issues are resolvable.

MacDonald also comments on the need to ensure transparency is key during the outbreak and that journalists should remain a feature of the family courts where appropriate:

“It is likely that FPR 27.11(3), which permits the press to be excluded if justice would be impeded or prejudiced is wide enough to permit the court to exclude the press from a remote hearing if the remote hearing could not, practically, take place if this step were not taken. It remains however, highly desirable, particularly at a time of national crisis, that the operation of the Family Courts is as transparent as possible in the circumstance.”

The guidance also offers extra support for Litigants in Person. MacDonald has asked that the courts intervene to ensure that they help LIPs with access to online platforms. Further guidelines have also been offered to court staff to help them provide access to LIPs through video and telephone conferencing sites. 

MacDonald sets down a comprehensive list of online platforms and how to use them, which should help family professionals who may be new to the technology.

It will be interesting to see how this modernisation affects daily practice in the family courts after the outbreak has come to an end. It is inevitable that there will be the usual tensions between legal professionals wanting to bill for their time and the cost-cutting impact of technology on the system.

However, our prediction is that this terrible tragedy will provide a much-needed technological jolt to the family courts, and we are likely to see a much more electronic court process in the future.

You can access the guidance here. 

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