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Are ‘remote’ hearings suitable for all family cases?

Date:1 MAY 2020

The Court Service, like many other sectors, has moved rapidly to deal with the effects of Covid-19.  Broadly, only 45% of courts remain open to the public for ‘essential’ face-to-face hearings, one third of courts are closed and slightly over 20% are temporarily closed. 

For those going through the family courts we have seen a number of changes. The majority of short, interim, hearings are still proceeding albeit either by telephone or by video. Whilst telephone case management hearings have been available in the civil courts for many years it had been uncommon to have family cases dealt with in that way.  A few final hearings, where it was felt it was not in the interests of the family to postpone, have gone ahead by way of video hearings. These have in the main taken place with the assistance of tech savvy judges and advocates.

Whilst some lawyers (and judges) have commented publically on how effective the hearings have been, it is clear that experience has not been shared by all.  An anonymous circuit judge working in the family court posted "judges like me are compromised in their ability to conduct hearings with the empathy, fairness, understanding and compassion that is rightly valued as an essential element of the family court... there have been times that the extent to which I felt constrained has been uncomfortable and I worry about the impact on the parties, and the wider goal of delivering justice fairly."

Following the PM's announcement to avoid all non-essential contact, a three day Court of Protection trial was conducted by Skype in what was heralded as ‘a legal first’.  Legal Journalists, keen for there to be transparency in the family courts reported it as "super fascinating… enjoying the occasional meow from someone's court and checking out the decor of people's gaffes”.  Barristers reported their experiences noting “judicial time had not been wasted nor was a sensitive and difficult case adjourned for months… No-one had to compromise their health and the fact the parties did not need to travel saved significant amounts of public money”.

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The view from the lawyers and the judge seemed to be that it was a great success.  However, not so for the family member whose ill father was the subject matter of that trial.  That person talked of a lack of gravitas.  There was no formality of being in a court room or any of the usual ‘pomp and ceremony’ that one may associate with court proceedings.  The family in the middle of that hearing felt somehow ‘short-changed’ and that the legal professionals pre-occupation with the technology somehow distracted the attention of those in court from the substantive content of that case - namely whether or not a person should receive life sustaining medical treatment.  Could this be how other families feel when their case is dealt with remotely?  Can a parent feel that their views on where their child should live are ‘heard’ if they cannot address the Judge directly?  Can a person dealing with a financial claim feel they have been dealt with fairly if the Judge is on the end of a telephone?

There are a number of ways and platforms via which a remote hearing can be conducted.  At present there is no substantive guidance from HMCTS as to which forum should be used.  Given the varying views across the spectrum of court users as to the appropriateness (or not) of remote hearings, it is unsurprising that the Family Division of the Court Service has started to undertake a two week rapid consultation from 14 – 28 April 2020 on the use of remote hearings in the family justice arena.  Nuffield Family Justice Observatory will undertake the research project and will consult families with children together with professionals working in the family justice system.  If you have had direct experience of a remote hearing, please provide feedback to NFJO.

It is clear that remote justice is not appropriate for all.  Given that many final cases have been adjourned until after any ‘lockdown’ restrictions have been lifted, there will be a considerable backlog of cases to be dealt with.  For many families waiting to have arrangements in relation to children determined or financial issues resolved the prospect of further delay is unacceptable.  There are other options that do not involve Court and the associated delays.  Birketts can assist clients and families with referrals to mediation, to family co-ordinators, to family therapists and to arbitrators.  An arbitrator can make a binding decision in both children and family cases and may be a much more attractive proposition rather than waiting months in line for a final case to be re-listed in already pressed courts.