Family Law

On 21 May 2020 Mr Justice MacDonald, Deputy Head of International Family Justice for England and Wales, delivered a speech to the International Academy of Family Lawyers Webinar.

He said: "It is a truism that we cannot know what the future will hold. Recently, this has been demonstrated to me in stark terms. On 1 February 2020 I delivered a speech to the Four Jurisdictions conference, held in Malaga in the days when we could interact with each other face to face; in the days when we had only a vague notion of the storm that was even then approaching us all. The speech was entitled “Family Law – Past and Future”. The presentation looked back at the past twenty five years of family law and forward to the next twenty five. In looking forward, I sought to peer through a glass darkly in an attempt to perceive what challenges the next twenty five years might hold, and how we might begin to think about addressing them.

Gazing into the future I noted new categories of maltreatment emerging to threaten the welfare of children that we had failed to anticipate, including the systematic exploitation of children by criminal gangs. I contemplated children whose genetic heritage is born of more than two parents. I imagined sentient, self-consciously aware androids capable of emulating well beyond good enough parenting being permitted to care for looked after children who need permanent families in a country short of foster cares and adopters. What I did not address, indeed what I confess did not even contemplate when writing the speech was an entirely remote access family court in which family justice was dispensed over the Internet by a judge sitting at a computer screen, remote from parties and lawyers. The reasons for omitting this possible future are probably multifaceted, not least a lack of imagination on my part. But also key to that oversight was, I suspect, that at that time, at least in this jurisdiction and in the field of family law, there remained significant, evidence based reservations with respect to the use of remote hearings in family cases.

Three months later, the family justice system in England and Wales is currently operating on an almost entirely remote basis. As I will come to, there are exceptions, borne out of an increasing understanding, based on our rapidly accumulating experience, that our initial reservations regarding the suitability of family cases for remote hearings were not misplaced, rendering some types of hearing unsuitable for the application of the remote access paradigm. But as at today’s date, a large number of family cases are being dealt with each day, across the jurisdiction, by way of remote hearings.

Just as it is demonstrably dangerous to try and anticipate the future, there are many cautionary tales about writing history before it has properly become history. However, when kindly asked to give the keynote address at this event it seemed to me a good time to take stock of the lessons that the introduction of a remote access family court has taught us so far in our jurisdiction. It is not my intention to hold out our approach as being definitive, still less to persuade other jurisdictions to adopt that approach. Rather, I seek simply to set out for you the benefits and difficulties we have encountered in endeavouring to create a remote access family court in this jurisdiction as a means of mitigating the impact of the current public health emergency." 

He concluded that: "The COVID-19 crisis has the constituted an unprecedented challenge to the provision of core public services that are traditionally delivered face to face. As an emergency measure to address an unprecedented restriction on access to family justice caused by the COVID-19 pandemic, I would argue that the Remote Access Family Court has been, on balance, a success. Through the use of remote hearings we have been able to maintain, albeit at a reduced level, effective access to justice for families in crisis and for vulnerable children and to continue mitigate the damage done by family breakdown and child abuse notwithstanding the unprecedented impact of a global crisis.

But, as I have sought to demonstrate, there have also been difficulties. Perhaps most acutely those arising from the loss of that direct human connection that it is now clear so many see as the keystone in our administration of family justice. Family law is concerned, at its heart, with the human condition and the resolution of the myriad of tragedies and complications that flow from it in all its chaotic splendour. In this context, and requiring as it does the application of empathy and compassion, it is perhaps unsurprising that people believe strongly that absent the current public health emergency family justice is best achieved face to face and not via a computer screen.

This position also highlights the continued importance of public engagement in the designing of critical public institutions. The design and functioning of the family justice system is a matter of acute public interest and therefore a matter that must be subject to the disciplines of democratic accountability and public oversight. It would undesirable for a system rolled out as a matter of urgent necessity in a state of emergency to become the de facto format of the family justice system without the appropriate level of public consultation and debate, particularly in circumstances where the adoption of that system would shape access to family justice for the populace for years and decades to come.

Within this context, and to repeat, whilst remote hearings will likely remain one of the tools for the administration of family justice long after the end of the COVID-19 pandemic, I for one am clear that such successes we have had with implementing the widespread use of remote hearings during the current period of acute crisis should not be taken as establishing a settled mode of operation for the family courts after the resolution of the current emergency."

The full text of the speech can be read here.