The motion for the recent Kingsley Napley debate: “This House believes remote hearings are not remotely fair” was carried with a fairly balanced 56% in favour and 44% against. With an audience made up of over a hundred family lawyers and barristers, this result was no doubt influenced by their experience of remote court hearings heard either via video link or by telephone over the last six months, since the national lockdown in March.
While, arguably, the majority of remote hearings have been delivered effectively with just and fair outcomes, it is clear that many family law practitioners consider that remote hearings are certainly not the ideal format for determining such significant issues for many people’s lives. The outcome of the debate may well reflect the feeling of the family law world in terms of how remote hearings are currently faring in circumstances where family court applications have increased significantly since the COVID-19 crisis in England began.
Interestingly, the second Nuffield Family Justice Observatory consultation on remote hearings published last month concluded that while “most professionals who responded to the survey felt that fairness and justice had been achieved in [remote hearings]… most or all of the time”, parents, other family members and organisations supporting parents “were less positive about remote hearings. The majority of parents and family members had concerns about the way their case had been dealt with and just under half said they had not understood what had happened during the hearing”. The difference in perceptions is stark.
Over the last six months, the efficiency and technological capabilities of the courts and those facilitating the hearings are vastly improving, cases are being heard, and eradicating practitioners’ time spent travelling to court and waiting around in the corridor for a case to start has reduced costs for clients. These practical benefits of remote hearings are evident and they seem to be working well in the circumstances.
But the key questions remain (as highlighted so significantly in the second Nuffield consultation):
It seems as though there is not a clear cut answer to these questions. The Nuffield consultation referred to the views of many practitioners who recognise that while there perhaps would be no difference in the outcome of the case whether it was heard remotely or in person – this is not necessarily the observation of the client. So why is the perception of justice so different between practitioners and their clients?
For many clients, attendance at a court hearing comes at the pinnacle of their case – key decisions are being made that will affect their lives, how much time will they spend with their children; how much will they receive following their financial application; can they return “home” to another country with their child following a relationship breakdown. You have to question whether the seriousness of the issues at hand really can transport effectively to the virtual court arena. Judges and family law practitioners may well believe that they do. However, from a lay person’s perspective as an applicant or respondent in a family application – the change of the physical “stage” from the court bench to the virtual screen may not bring with it the gravitas and formality of the courtroom. Evidently, in many remote cases, the gravitas of a court hearing is lost and, arguably, this is what impacts clients the most. Perhaps the most important consideration for clients is that they feel that their voices have been heard and that justice has been done – particularly in circumstances where the Judge cannot be seen in the flesh or where a client sees their partner on screen sitting at a familiar kitchen table or the barrister with their sofa in the background. This is something that must be borne in mind for family law practitioners, particularly going forward when remote hearings are now the default position for the time-being.
Plainly, the atmosphere of the court room cannot transfer to a virtual screen. The role of family law practitioners is to ensure that their client feels that their voice is heard, that the relationship with their advisors is not in any way affected by the fact that they are not sitting next to them while the nuances of their case are aired. It cannot be denied by anyone who has experienced a court hearing virtually over the last six months that there is a significant difference between speaking with someone face to face compared with a phone call or a Whatsapp conversation to convey real feelings. Notably the Nuffield report stated that “Many respondents expressed concern about the difficulty of creating an empathetic and supportive environment when hearings are held remotely”.
So what can be done about this? It is tricky terrain and the courts, the judiciary and family law practitioners are all grappling their way through it. As the Nuffield Report demonstrates, lawyers need continually to re-consider how they can effectively engage with their client remotely and perhaps especially during court hearings when a client’s perception of what is happening may differ entirely from how the professional is viewing it. It is a challenge for all involved. Remote working and remote hearings are now the default– it remains ever more important to ensure that clients receive the best support they can and ensure that empathy and fairness are still conveyed.