Face Masks in Family Court

Are face masks appropriate in family court final hearings?

The Law Society Gazette has reported that a “top health expert calls for face masks in court”.

There is scientific evidence which confirms that the chances of spreading the coronavirus is heightened indoors, particularly in buildings with low levels of ventilation. It has been said that the disease is airborne and can travel through droplets, so clearly when solicitors or barristers are cross examining witnesses, making legal submissions to a judge in court or ensuring they are speaking loudly so all parties can hear, it must be true that courts are a risky environment.

It therefore may follow that it is simply common sense and in the public interest to wear facemasks in court and minimise that risk.

However, are masks the right answer to benefit the case as a whole?

The family courts exist primarily to ensure that justice is done. They are there to assist in family disputes and to provide a resolution to some of the most challenging and emotional cases.

As family lawyers, we deal with a number of cases which proceed to final hearings, which are court hearings which involving the ‘cross examination’ of witnesses.

They can include the following:

1. Contested children disputes (to make appropriate arrangements for the children, whether it is about where they should live, how much time they should spend with another parent etc);

2. Contested financial disputes (so a decision can be made as to the appropriate division of matrimonial assets);

3. ‘Finding of Fact’ hearings (where there have been allegations of domestic violence made and it needs to be decided whether or not a particular incident happened).

Judges can make decisions in the above scenarios at final hearings. They can only do that once they have considered all facts of the case and which includes listening to both parties giving evidence and being questioned by the other party’s legal representative (called cross-examination). They then need to analyse the evidence before making a decision.

If a witness is however wearing a mask, there may need to be some regard for how this could influence a judge’s perception of that witness. Body language can be very important to establish the demeanour of a person and their character. For example, a witness may come over as aggressive or hostile in the way that they speak or move their mouth. They could for example, smirk in response to a particular question, showing them to have a lack of remorse or empathy or alternatively, their facial expressions may show them to be an anxious person.

Without being able to see facial expressions fully, it will need to be considered whether this could influence the delivery of the evidence as a whole and indirectly influence the outcome.

It’s a question that no one will know the answer to at the moment and only time will tell.

The courts are doing what they can to make sure that justice can still be achieved throughout the ongoing pandemic, for example via remote hearings, such as by video link, zoom, etc. Although those hearings are not currently taking place in person, would cross examination be more effective by those means rather than attendance in person but with face coverings? It’s an interesting question and it may something that might need to be reviewed and properly considered.

If you have a final hearing coming up and don’t know what to expect, or if you have any queries in respect of a Family Law issue generally, then please do not hesitate to contact the team on 01625 544 650 or info@family-law.co.uk.