Family Law

The lockdown period seems to be gradually easing now but I for one do not believe that remote hearings will end after this. That said, remote hearings shouldn’t and can’t continue to be the norm forever; my first blog addressed the importance of face-to-face contact in family proceedings and I still believe that that is the way it should always be. In this time though, we have learnt that remote hearings are possible, can work smoothly and should be available where necessary. I am not willing to accept that these hearings are merely ‘stop gaps’ for now – there is some use for them in the future. That means we need to make sure that in this period, we as practitioners can help refine the process to be as comfortable, engaging and accessible for clients as we can should we ever need it again.

My focus today is what information we can glean from the lay parties’ experience of these hearing. I mentioned in my last blog post that I was increasingly concerned about what the client experience was of remote hearings. This lead me to the recent report of the Nuffield Family Justice Observatory and the comments therein.

So, in this blog, I want to consider the content of that report and add in a few anecdotes to identify the pitfalls and problems remote hearings present for clients. What can we learn from those concerns for the future, even long after this lockdown has passed? And how is that research valuable in considering the client experience that we deliver going forward?

The Nuffield Family Justice Observatory’s Research

https://www.judiciary.uk/wp-content/uploads/2020/05/remote-hearings-rapid-review.pdf

The NFJO’s recent rapid consultation: ‘Remote Hearings in the Family Justice System,’ is the critical document we all need to be looking at to examine the immediate impact on the family justice system for parties. The consultation ran from 14th – 28th April, 2020 and involved responses from over 1,000 parents, carers and professionals in the family justice system across England and Wales. This research is required reading for anyone involved with remote hearings (i.e, all of us). I want to summarise a few of the key elements of the report that we should focus on:

a. Concerns about the fairness and justice of remote hearings.
b. Difficulties arising from lack of face-to-face contact; unable to read body language, difficulties for clients to give instructions during hearings.
c. Challenges to participation in hearings; lack of available technology; emotional impact on parties; difficulties for parties to follow proceedings without the availability of constant guidance from professionals.
d. Technological disadvantages; availability, accounting for interpreters, intermediaries or accounting for vulnerability of parties (cognitive, hearing impairments etc). Technical faults such as being unable to hear what is being said.
e. Hearing lengths feeling truncated.
f. Lack of preparation: inadequate information in advance ahead of hearings.
g. Issues of confidentiality and privacy; presence of children/childcare arrangements, no security about listening in or recording court proceedings; concerns about managing domestic violence cases.
h. Urgent removal of children – the emotionally charged nature of these sorts of cases has encouraged greater problems due to accessibility to hearings,
i. Concerns about adjournments: in some areas, any cases where the application was contested and the hearing would involve the parties giving evidence or being cross-examined have been adjourned, while in others, both the long and short-contested hearings are continuing. Some suggestion that cases that could go ahead were being adjourned. Concerns raised about the impact on children.
j. Technology: practicalities (can parties be seen properly in video conferencing software?). Telephone hearings seen as the most accessible form; concerns about security of video platforms. Lack of clarity as to who is responsible for setting up hearings. Access to technology; stability of connections.

The remainder of the report addresses the wellbeing and management of professionals. I am not going to cover this today but there were some concerning reports from respondents about how remote hearings were impacting their wellbeing.

Interestingly, there was not a large amount of opposition towards remote hearings taking place per se and from reading the report, the concerns raised were less to do about the principle of remote hearings, so much as they focused on the difficulties that improperly organised remote hearings were causing for parties.

I am not going to deal with the entire content of this report; it is succinctly put and clarifies where the issues of remote hearings lie. My focus today is on the lay parties’ experience – how they perceive and understand the hearing and how it happens; and precisely how we, as family practitioners as part of the family justice system, can improve that experience for them. For that purpose, I want to focus on the negative comments that were made by parties specifically and their feedback towards the process.

I wrote a great deal about the circumstances of lay parties in my last post. The report indeed echoes much from my own experience; it cannot be right that a parent is having to ensure childcare of their children who are the very subject of proceedings – far less acceptable that decisions so grandiose are putting them on the spot in this way. And what about cases with severe allegations of domestic abuse; should a video hearing be the way forward when there could be special measures in place at a court?

I was also directed to Professor Celia Kitzinger’s post for the Transparency Project. Professor Kitzinger is the co-director of the Coma and Disorders of Consciousness Research Centre and Honorary Professor at the Cardiff University School of Law and Politics.

See here: http://www.transparencyproject.org.uk/remote-justice-a-family-perspective/

This piece is a perfect summation of an imperfect system; the emotional challenges faced by a party to proceedings. It echoes very strongly the same concerns that arose from the report previously mentioned but gives us a complete narrative – a narrative I well know that parties up and down the country are facing. I’m not going to analyse this in much detail here but the concerns raised have a common theme between the report and the anecdotes I’ll briefly share below.

Before I go on, there are positive comments that we can draw from the research; some people preferred remote hearings; few people objected to these hearings per se. Some felt that remote hearings alleviated pressure in acrimonious cases or cases with allegations of domestic violence. This blog post is not about rubbishing the remote hearing process – it is a means through which I am suggesting constructive steps to make the medium more viable and ways we can help our clients further.

Some anecdotes…

I unfortunately, do not have the resources of Nuffield Family Justice Observatory to obtain reportage from 1,000 plus respondents. Theirs has been a monumental and important task that I wouldn’t seek to replicate.

But I did want to look closely at how I and my colleagues perceived what they had seen for their clients and parties in proceedings. Here are some of the concerns they raised – it won’t escape your notice that many of these same concerns reared their heads within the report itself:

a. Cases where parties felt disengaged from the process and lawyers discussed their case without giving them any sense of presence in the proceedings.
b. A lack of clear consideration beforehand about parties’ ability to engage through the technology. A colleague told me about a case where their client had a hearing impairment and the matter had to be adjourned.
c. There is a feeling that lay parties are missing the time around the hearings which they would otherwise spend discussing with their representatives.
d. Concerns about how clients give instructions during the hearing.

They all, for the most part, find themselves back at the common denominator; the absence of face-to-face contact has limited parties’ engagement with hearings and damages their perception of those hearings.

Looking at the report and the anecdotes I’ve heard and thinking about what we are able to do as practitioners, we could use the following headings:

a. Improve parties’ engagement with proceedings
b. Improve or ameliorate limitations due to lack of face to face contact
c. Understand and account for the client’s circumstances when conducting the hearing

Some ideas…

I want us all to think about ways that we can make these remote hearings, as far as possible, best for our clients. It is not an ideal world we live in right now and remote hearings feel like necessary evils rather than meaningful approaches. However, refining those processes produce two great results:

a. In the immediate, our remote hearings are better for clients – however long we will be conducting them; and
b. In the future, if we need to use, implement and rely on remote hearings, we know where the pitfalls lie.

Improving Parties’ Engagement with proceedings

The environmental aspect of client engagement – my question about circumstances – is obviously an issue. The replies concerning the ability for clients to engage physically with remote hearings is frankly terrifying – imagine taking a call to a court hearing from a car outside the very hospital your child was born in, knowing that this voice on the other end of the phone may be making a decision about that child’s immediate future? How can you feel engaged, with or without representation? I can certainly see the absence of available technology being one of the greatest barriers to the continuation of large numbers of remote hearings in future.

We need to take whatever steps we can take to ameliorate this and improve it where possible. I have found that early engagement is critical; contacting solicitors and getting the client on the phone before the court appointment is more important than ever and would highly recommend this approach where time permits. Speaking to your client the day before a hearing so that they are at least accustomed to your voice and manner is important and that chat at 09:00 before the hearing will not be enough. This also can resolve that time we have lost sitting in conference rooms having discussions during the court day. Unfortunately, this does presuppose the availability of time for yourself and the client which may not always be possible. Other ways of communication can be examined and suggested but I feel earlier and more client engagement within reason must be attempted wherever possible.

That discussion the day before the hearing should also be used to explain the process of a remote hearing. I cannot stress enough the importance of outlining the hearing procedure clearly to scared and pressured clients and understanding their circumstances. The client should know to expect a call, should know that no one will necessarily say anything when they first join or, in a video conference, understand to wait patiently or mute their microphones. It is perhaps easier to explain an in person hearing in a few sentences – parties often have an inkling of what to expect. But a remote hearing begets a more detailed explanation that informs and reassures the client.

Mechanisms for taking instructions during the hearing have been cause for concern which I must echo. My present stop gap is e-mail and/or text messages and WhatsApp. Many people do not know that some smartphones can stay on a telephone hearing and send text messages. None of these approaches are ideal but a system needs to be discussed and put in place so the client feels reassured that they can engage with you during a hearing without feeling left out. WhatsApp is possible but of course, be judicious about giving out your details and remember about security issues. At the very least, you need to discuss the possibilities before the hearing and, if you are limited in some way or another, either spend more time with the client to address all the issues or take further time for discussions if the other side raises more issues.

In the after hearing discussions, it is doubly important that the client understood what happened and what took place – not being physically present can often cause the mind to wander or be distracted.

I have said quite a few times now that remote hearings are being viewed as facsimiles of in person hearings and yet the practice of ‘taking quick instructions’ or a brief hiatus to discuss matters has been almost completely scrubbed from the remote process. I cannot understand why this is the case – why have we purposefully excluded one element of the process but attempted to retain all others? Remote hearings suffer from some strange alien procedure where courts are being stricter on the available time, unable to hear from parties again and essentially feeling like there is less time than there sometimes is in a court day. Does that come from the odd assumption that a remote hearing is faster, more expedited? Could it be as simple as the challenge of setting up the technology again is disruptive or challenging?

That attitude almost entirely explains the number of respondents to the report feeling disengaged or left out of the court process – it is not as simple as the physical presence at court. It is because, regardless of how much we have tried to replicate the same process again, it still does not always feel that a court hearing is taking place because something as ordinary as taking instructions does not appear to be possible. Clients are rendered silent because they cannot respond to comments within the court room – the very focal point of the proceedings in that moment.

Keep the client engaged and involved as far as you are able to – they are the people who need to understand the proceedings. But this can be even more challenging when faced with intermediaries, interpreters and other support necessary for a client. Proper preparation can assist but to that, I cannot suggest anything better than a) ensuring that your ‘ducks are in a row’ as far as possible before a hearing and b) keeping the court and the judge aware of the limitations and challenges that may arise when requiring other services.

Improving or Ameliorating Limitations due to lack of face-to-face contact

There is no doubt that the face-to-face component of family proceedings cannot be replicated by anything other than physical presence in the same room. It was telling that even the Nuffield Family Justice research shows us that – video conferencing, while better than telephone communications, cannot equalise that in any way. I am of the opinion that video conferencing is a better norm in cases where evidence must be considered. While there may be scope for telephone hearings on uncontested directions to continue, the default for a remote hearing of any kind ought to be via video platforms. That is a no brainer – it is the closest we can reach to physical presence and outstrips telephone hearings in that regard.

Much of my suggestions to work around the face-to-face contact issue are the same as those dealing with client engagement (since many parties don’t feel engaged precisely because there is no face-to-face contact). My current theory is that the only way to improve this is with greater client contact at earlier stages – the earlier conference and discussions I discussed. I have used Facetime on one occasion to speak to a client directly when they felt unable to communicate with me on the phone. I cannot say that this is always the best approach. My suggested guideline is to remain client focused and client lead; what is the best way for them to communicate with you and what is the best medium for them to engage? Some parties won’t want to have a video call, some would much prefer it – lay out the available options.

Remember that not everyone has access to the same resources – where parties are confused and concerned about where they can listen to a hearing, how they can manage, think about and work with them about workable options. It should be a last resort (and rare indeed) that a party be absent from a remote hearing due to childcare or other similar barriers. Advising about the best approach for parties to engage in hearings will not only reassure them but also give you a better sense of their own circumstances. And, if the client is at the absolute limit of what is possible, it is vitally important that the court is updated on their circumstances in engaging with the hearing at the earliest possible stage.

I have to say, while I accept that the empathetic response is limited to a degree by the absence of human contact it is not wholesale eliminated. We are, after all, expert communicators as family lawyers. Always try to exercise that empathetic response to the highest standard by whatever medium or means available; from telephone to Skype. No, it is not the same as being physically present but parties should never feel that they are speaking to a talking head or disembodied voice. Family lawyers are prized and respected for our ability to empathise and accommodate for our clients – this is just another way we can do that and a new talent we can adapt as best we can to. Whether we adjust approaches, increase contact time available to clients – we must preserve that engagement with whatever resources we can.

Understand and account for client circumstances

As before, this really bleeds back into the previous points I’ve raised. I’ve spent a long time thinking about this and perhaps it is the most important of all the possible action points for us today. Even as simple as: ‘how are you feeling today?’ and explaining what will happen to reassure them; making sure that they feel that they are involved and engaged with the process – what can you do to improve that experience? Understanding why they may feel certain pressures or challenges; where are the children?

The report relates that parents were participating in hearings by the roadside, in sheds, in their car outside the hospital where their baby had been born; I worry that the court is not being told enough about this at the earliest possible stage. We need to take that up for ourselves as best we can; is there anything we can suggest or do? Sometimes not, but I would far rather be attending a remote hearing knowing from where and how my client can engage and making sure the court knows that. There needs to be space for any potential accessibility or technological challenges to be made known as early as possible – potentially even before issue in child protection cases right now – could childcare professionals help inform the court in advance on emergency applications to give the parents the best chance to engage?

Once you have that information, the court will need to know – can the client take a break to check on the children for a moment? Are they able to have a brief pause? Some of those requests would be straightforward in a court building – I’m surprised that they are not being considered in remote hearings (the report does not suggest that they are widespread or common). Courts should still be able to accommodate these concerns and we should not by shy in raising concerns that improve our client’s ability to be involved and engaged. That is a priority.

This is the last in my series of blog posts on remote hearings for now. As the lockdown easing steps continue, there may be more questions, fewer answers or something else entirely. The President of the Family Division has already reminded us recently, we cannot know when this will end. What we can do is, as always, ensure we are observing our duties to both the court and our clients to ensure that these hearings are as effective, just and fair as possible.