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Recent global events have affected the way courts operate in the UK and special considerations must be made to ensure the health and safety of those in attendance. While wearing masks or other face coverings in court is not mandatory, it is recommended by HMCTS as are alternative approaches such as remote hearings.

The recent global outbreak of coronavirus has impacted heavily on our lifestyles and the ways we interact as a society. One of the less disruptive changes that has been recommended is the use of face masks and face coverings in public spaces, particularly indoors. The latest legislation states that face masks and coverings must be worn in shops and supermarkets, and on public transport in England. Failure to do so will incur a fine of up to £100.

One of the challenges in controlling the rate of infection is the fact that many cases are completely asymptomatic – it is entirely possible to have a contagious case of COVID-19 and make others sick without ever having any symptoms yourself. While masks are not as effective in preventing a healthy person from contracting the virus, they reduce the likelihood that an infected person will pass on their infection.

There has been some slight confusion over whether face masks and coverings will be mandated in court going forward. The court environment can be considered high risk as cases take place indoors and involve the kind of loud, clear speech that produces higher levels of airborne water droplets than quiet speech. As such, HM Courts and Tribunals Service (HMCTS) have provided guidance on staying safe while attending family court.

Staying safe while attending family court

The guidance shared by HMCTS is, ‘From Monday 27 July 2020, we’re encouraging all court and tribunals users to wear a face covering in our buildings in England unless they have valid reason not to. This minimises the coronavirus risks throughout our buildings.’ Exemptions apply for individuals with disabilities or health issues, and individuals who are hard of hearing or deaf and rely on lip reading.

Essentially, the wearing of face masks and face coverings when appearing in family court before a judge or magistrate when submissions are being made and evidence heard is not mandatory, but is strongly encouraged in the interests of public health and safety. Individuals attending court in Wales and Scotland are also encouraged to make use of face masks and coverings in court, but again they are not mandatory.

In an ideal world, using masks or face coverings would be the standard practice currently, but there are a few unique considerations to make when deciding whether to use them in family court specifically. We would recommend attendees to wear the face masks whilst in court, only removing the coverings when speaking directly to the judge or magistrate.

Should masks be worn in family court?

To resolve cases effectively, a judge will need to have a clear and factual account of events surrounding each case and often this involves the use of witnesses, the giving of evidence, and cross-examination. Body language plays an important role in this process, helping to establish a person’s character and demeanour. Wearing a mask or face covering in this instance could potentially make it more challenging to form accurate judgements and how this could potentially influence outcomes needs to be considered.

Another major consideration relates to cases involving children, particularly if they are very young. Face masks and coverings can be disturbing to some children and can make an already potentially difficult experience even more unsettling for them, especially if they are being asked to speak.

What are the alternatives?

Many courts are opting to carry out their family court hearings remotely using video link services such as Zoom, Skype or via telephone which negates the risk of infection almost completely. This is an approach that can present an ideal solution on a case by case basis and requires courts to think about the play-off between infection risk and being able to accurately assess the demeanour of a witness during cross-examination. If you would like to discuss which course of action is best for your specific circumstances then contact us for more information.

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