Are remote hearings effective in the dispensation of justice within the family courts?

The recent research, published by the Nuffield Family Justice Observatory and commissioned by the President of the Family Division, Sir Andrew McFarlane, considers the impact of remote hearings which have taken place since the beginning of the Covid-19 crisis.

This independent research (which can be found here: https://www.judiciary.uk/wp-content/uploads/2020/05/remote-hearings-rapid-review.pdf) includes more than 1000 submissions from members of the legal profession, families, social workers, CAFCASS officers, judges and court staff.

Whilst the majority agreed that remote hearings at the present time were justified, there was an even amount of people who defined their experience of the process as negative and positive. Many expressed concerns about the difficulty of ensuring the process is fair and just, when hearings are conducted remotely and some have suggested that remote hearings are inappropriate when dealing with the welfare of a child, and should only be used for direction hearings.

The justifications for such opinions are clear and reasonable:

1. Without face to face contact with parties, (in both telephone and video hearings) it is difficult for Judges and advocates to read the body language of witnesses giving evidence, or parties hearing that evidence.
2. Some noted that it is difficult, if not impossible, to provide effective support to clients and parties before, during and after any remote hearing. It is also impossible to “read” someone’s emotions during the process to see whether they need a break or do not understand something. A judge quoted in the report said, “My role is absolutely dependent on the humane administration of a very, very complex interactive process” and that, “remote hearings are not suitable for the vast majority of family cases because they prevent vital human connections”.
3. Without being able to see your client, the ability to take instructions during hearings is a challenge. Some clients complained that it is unhelpful to “meet” barristers for the first time on the screen or phone.
4. In cases involving children, parents (who are dealing with an emotional scenario), may find it even harder to express themselves or follow the process. This is the same for litigants in person, or those with cognitive or hearing impairments.
5. Frequently there may be last minute changes to the technology or platform used by the Court, which makes the parties feel more anxious and unprepared.
6. There were also concerns raised about confidentiality. Sometimes hearings have been stopped as other people were present in the room. Often practical problems prevent the hearing progressing, for example when a party has no space at home to speak privately, or when children cannot be left unsupervised.
7. In relation to adjournments, some parties felt that their case was adjourned without full consideration of the impact of the delay on the outcome, particularly to children. In addition, adjourning cases will no doubt lead to a backlog of cases which will result in further delays in the future.
8. In terms of contested final hearings and hearings requiring cross examination, many felt that these were not suitable for remote hearings.

In trying to grapple with the impact of the pandemic, the legal profession is doing its best to keep the wheels of the Court process in motion. To a very large degree, this is succeeding, despite the odds. This report is essential reading to highlight those areas which may require some improvement.