Safety From Domestic Abuse

Family Law

Safety From Domestic Abuse and Special Measures in Remote & Hybrid Hearings (November 2020)

Most practitioners will be aware of the helpful guidance published on Tuesday 10th November by Sir Andrew McFarlane (President of the Family Division) with the assistance of the Domestic Abuse Working Group of the Family Justice Council in relation to the ongoing need to protect victims of domestic abuse in remote family hearings where domestic abuse has been proved or may be an issue.

The guidance has been drafted to ensure the delivery of safe evidence and full participation of vulnerable parties. The guidance states that the need to ensure safety from COVID-19 infection should not mean that other safety considerations are ignored or abandoned. PD12J, PD3A and PD3AA of the Family Procedure Rules continue to apply.

Having read the guidance, I thought it was particularly important to summarise some of the key points below, not only for the benefit of legal professionals but also for those individuals who are representing themselves in family proceedings. The guidance provides an important checklist which is summary is as follows:

Checklist of considerations for proceedings in which domestic abuse is an issue

  • In what environment will the victim be appearing and be preparing themselves for and dealing with the aftermath of the hearing?
  • What will be visible to the court and the Parties in the proceedings?
  • What kind of environment and level of visibility is necessary in order to ensure physical and emotional safety for the victim and any children involved, including when the victim gives evidence?

With the above checklist of considerations in mind, the guidance explores the factors under the checklist in further detail as summarised below which should be bourne in mind by all involved in the proceedings:

(1)Prior Arrangement and Format of the Hearing – Telephone, Video, or in Court?

  • It is for the Judge to decide which format will be used, but victims of domestic abuse should always be consulted (via their legal representative if they have one) as to their preferred mode of participation – in a courtroom in person, or by telephone or video?
  • The consultation should take place far ahead (i.e. at the earliest opportunity) to enable arrangements to be made.
  • It needs to be clear how this consultation will occur and whose task it is to undertake it. Parties should be asked to provide relevant details to the Court at least 48 hours before the hearing to enable the Judge to make a decision as to format and to set up the hearing.
  • Contact details for remote hearings should be kept private. Emails sent to multiple participants, including lay participants, should always be sent as bcc rather than open cc for the safety of advocates as well as parties. Emails sent to multiple participants should never include a party’s or their lawyer’s mobile phone number.
  • Consultation should include consideration of children’s welfare before, during and after the hearing. Important factors such as what arrangements have been made for childcare during the hearing and what will be the likely impact on the child if the parent they live with experiences a distressing or traumatic hearing in their home?
  • It also needs to be clear what will happen if preferences cannot be met – how that will be explained and what alternative risk reduction measures will be taken.
  • It is essential that the format for the hearing and the link for the hearing are provided in good time to avoid the victim feeling overwhelmed and anxious during the hearing.

(2). Personal Protection for the Victim

It is important to emphasise that the guidance makes it clear that the victim and perpetrator (and the perpetrators’ lawyer) should never be put in a situation where they are alone together in a courtroom, on a telephone line, or in a video conference.

If the victim is represented in a remote hearing and is at a different location from their representative, their lawyer should join the hearing first.

  • If the victim is in person in a remote hearing, either a member of court staff should activate the hearing and remain on the line at least until the Judge has joined, or the Judge should activate the hearing and admit the other parties.
  • At the end of the remote hearing, depending on the platform being used, the Judge or a member of court staff should be the last to leave the hearing, or should terminate the link for all parties simultaneously.
  • If the victim is due to attend Court in a hybrid hearing and is legally represented, there should be an expectation that they are joined in Court by their legal representation. If they are not legally represented, they may be encouraged to bring a supporter with them. The supporter must not actively participate in the hearing.

(3) Special measures/participation directions during Video Hearings

For some victims, participation in a video conference can be invasive, (re)traumatising and endangering as the perpetrator may note details of their private, safe space, which may also be used to track them down, break into their home, continue the exercise of coercive control, or harass or intimidate them in other ways; this would naturally be distressing for the victim. In order to avoid these consequences:

The Court should provide information on how participants can blur their background or use a generic background if the platform being used enables this. If the platform does not enable this, the Court should give advice about how to make the background as generic as possible.

  • Victims and vulnerable witnesses should be permitted to join by audio only and/or to leave their video turned off even if other participants are visible on video. The perpetrator can also be required to join by audio only and/or to turn their video off. If it is necessary for the Court to see the perpetrator (e.g. while giving evidence), the victim should be given advice as to how to cover their screen to avoid having to see the perpetrator themselves.
  • Victims may be encouraged to join the hearing from their lawyer’s office if they are represented, or from another ‘neutral’ space if available.
  • A hybrid hearing may involve the victim (and their lawyer if they have one) being present in person in the courtroom while the alleged perpetrator joins remotely. This should particularly be considered where the court facilities do not enable full special measures, e.g. separate entrance, separate waiting area, effective screening.
  • A victim may be excused from attendance if they are represented and the hearing is not one at which evidence will be given – the lawyer should have the opportunity to take instructions from their client by phone if necessary.
  • Provision for special measures/participation directions should be included in the case plan for any hybrid hearing.
  • When warning participants that recording of a remote hearing is strictly forbidden, the court should clearly specify that any form of recording is forbidden, including video recording, audio recording, or taking a photograph or screen grab, and that doing so may be regarded as an example of harassment.

The full guidance includes further points in relation to urgent and without notice hearings and fact finding hearing. The full guidance can be read here –