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Covid 19 and the “Open Court”

In this, as in all things, COVID 19 has impacted on litigation in many ways.

In the recent case of Re Imogen (No 5) [2020] Justice Watts had to consider whether the final hearing of a gender dysphoria treatment case was to be heard in open Court – and if so how?

Section 97 of the Family Law Act provides that all proceedings in a Court exercising Family Law jurisdiction shall be heard in open Court. During the COVID 19 pandemic, the Court has been using Microsoft Teams platform – with access to the Teams meeting being open to the public.

Section 97 is however subject to the Court being able to make an Order that only the parties and their legal representatives may be present in Court during the proceedings. The Act also prohibits – even in an open Court – the publication of non-anonymised details of proceedings (section 121).

The difficulty being, that short of anonymising all details (the child, the parties, the treating medical practitioners, counsellors, schools etc) during the proceedings – which would be unduly cumbersome – how was the Court to ensure that members of the public using the Teams meeting were aware of the prohibition in section 121?  If such details were not anonymised, having to inform each person who may “drop” in to the Teams meeting of the prohibition would also be disruptive to proceedings. Further, Justice Watts was concerned – because of the transportable nature of the Teams platform – that a person who needed to be on the Teams meeting could be out in public during the proceedings, and a person not aware of the section 121 prohibition could overhear the proceedings.

In this matter the child’s express wish was for the Court to be closed; the Independent Children’s Lawyer conceded that there was a public interest in the proceedings and therefore the Court should be open – but proposed that a specific non-publication Order be made and access to the Teams meeting be restricted.

The Court ultimately decided to have the Court room itself open to the public, but the Teams meeting – where the parties would be joining from – be closed. That way if any member of the public wanted to view the proceedings they could do so in the Court room (subject to COVID 19 regulations) where the Judge could provide a warning about section 121.

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