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Remote hearings pose a particular challenge when considering the fair participation of vulnerable individuals
By Siân Smith
The Family Court has adapted rapidly to the use of remote hearings. As a result, many interim and case management hearings have been able to proceed during lockdown. Some contested final and fact-finding hearings have taken place remotely, but many have been adjourned.
Lockdown restrictions are now being eased and Sir Andrew McFarlane, President of the Family Division, has published The Family Court and COVID-19: The Road Ahead, a framework for the coming months.
The use of in person and ‘hybrid’ (partly in person, partly remote) hearings will be increased, but the necessities of social distancing will mean that the courts’ capacity to accommodate such hearings will be limited. Remote hearings will be a day-to-day necessity for all types of hearings.
Remote hearings pose a particular challenge when considering the fair participation of vulnerable individuals.
For some vulnerable parties, remote hearings may exacerbate their difficulties in accessing the court. Others may find that the technology poses an impediment to their engagement that would have been avoided if the hearing was taking place face to face. Yet on the other hand, some parties may welcome a remote hearing as providing a layer of protection which makes the process more accessible. The situation is nuanced and complex.
On 6 May 2020, Sir Andrew McFarlane published a report of the Nuffield Family Justice Observatory (NFJO): Remote hearings in the family justice system: a rapid consultation, by Mary Ryan, NFJO associate, Lisa Harker, NFJO director and Sarah Rothera, independent consultant. Accompanying the consultation report is a briefing paper by Dr Natalie Byrom, Director of Research and Learning at the Legal Education Foundation: What we know about the impact of remote hearings on access to justice: a rapid evidence review.
Dr Byrom identifies significant limitations in the current evidence base relating to audio hearings and fully video hearings. The studies that are available raise concerns regarding the impact of remote hearings on the ability of parties to participate effectively in proceedings. While the reasons are not well understood, Dr Byrom offers a number of potential explanations based on the research:
These concerns are echoed by many of those responding to the consultation.
The NFJO’s consultation has shone some much-needed light into the remote Family Court, and in doing so has highlighted some important issues. The focus of this article is on the aspects particularly relating to fair participation and vulnerability.
The NFJO reports that, although many of its respondents had concerns about certain types of hearings proceeding remotely, ‘barely anyone opposed remote hearings in principle’. Nonetheless, a strong theme of concern was apparent in respect of the fairness of remote hearings, particularly when dealing with ‘substantial’ matters. It was felt by many that the usual levels of empathy and humanity, regarded as an essential element of the family justice system, were extremely difficult to achieve.
A wide range of issues were reported relating to the inability of parties to participate effectively. These include:
There were very few responses indicating a positive experience from parties. They included: a parent who found the process to be less daunting; and a young person who reported positively on a Zoom meeting with a judge.
The reports identify a wide range of issues that may serve to inhibit a party’s effective participation in a remote hearing of any type and to which we must be consistently alert.
Careful evaluation at every stage of a party’s ability to fairly access a remote hearing, and of the measures that can be put in place to support participation, is essential.
The framework set out in the Road Ahead has been, in part, informed by the NFJO reports. Its COVID Case Management Checklist includes a section on ‘Optimising fairness of remote hearings’, which should serve to promote focus on the needs of lay parties.
Practitioners should also consider Mr Justice MacDonald’s guide to The Remote Family Court and the examples of good practice and practical suggestions set out in the NFJO report.
For vulnerable parties who are entitled to the protections of Pt 3A of the Family Procedure Rules, it will be important to ensure that participation directions are sufficiently targeted to the circumstances of a remote (or hybrid) hearing.
The Family Court has adapted rapidly to the use of remote hearings. As a result, many interim and case management hearings have been able to proceed during lockdown. Some contested final and fact-finding hearings have taken place remotely, but many have been adjourned.
Lockdown restrictions are now being eased and Sir Andrew McFarlane, President of the Family Division, has published The Family Court and COVID-19: The Road Ahead, a framework for the coming months.
The use of in person and ‘hybrid’ (partly in person, partly remote) hearings will be increased, but the necessities of social distancing will mean that the courts’ capacity to accommodate such hearings will be limited. Remote hearings will be a day-to-day necessity for all types of hearings.
Remote hearings pose a particular challenge when considering the fair participation of vulnerable individuals.
For some vulnerable parties, remote hearings may exacerbate their difficulties in accessing the court. Others may find that the technology poses an impediment to their engagement that would have been avoided if the hearing was taking place face to face. Yet on the other hand, some parties may welcome a remote hearing as providing a layer of protection which makes the process more accessible. The situation is nuanced and complex.
On 6 May 2020, Sir Andrew McFarlane published a report of the Nuffield Family Justice Observatory (NFJO): Remote hearings in the family justice system: a rapid consultation, by Mary Ryan, NFJO associate, Lisa Harker, NFJO director and Sarah Rothera, independent consultant. Accompanying the consultation report is a briefing paper by Dr Natalie Byrom, Director of Research and Learning at the Legal Education Foundation: What we know about the impact of remote hearings on access to justice: a rapid evidence review.
Dr Byrom identifies significant limitations in the current evidence base relating to audio hearings and fully video hearings. The studies that are available raise concerns regarding the impact of remote hearings on the ability of parties to participate effectively in proceedings. While the reasons are not well understood, Dr Byrom offers a number of potential explanations based on the research:
These concerns are echoed by many of those responding to the consultation.
The NFJO’s consultation has shone some much-needed light into the remote Family Court, and in doing so has highlighted some important issues. The focus of this article is on the aspects particularly relating to fair participation and vulnerability.
The NFJO reports that, although many of its respondents had concerns about certain types of hearings proceeding remotely, ‘barely anyone opposed remote hearings in principle’. Nonetheless, a strong theme of concern was apparent in respect of the fairness of remote hearings, particularly when dealing with ‘substantial’ matters. It was felt by many that the usual levels of empathy and humanity, regarded as an essential element of the family justice system, were extremely difficult to achieve.
A wide range of issues were reported relating to the inability of parties to participate effectively. These include:
There were very few responses indicating a positive experience from parties. They included: a parent who found the process to be less daunting; and a young person who reported positively on a Zoom meeting with a judge.
The reports identify a wide range of issues that may serve to inhibit a party’s effective participation in a remote hearing of any type and to which we must be consistently alert.
Careful evaluation at every stage of a party’s ability to fairly access a remote hearing, and of the measures that can be put in place to support participation, is essential.
The framework set out in the Road Ahead has been, in part, informed by the NFJO reports. Its COVID Case Management Checklist includes a section on ‘Optimising fairness of remote hearings’, which should serve to promote focus on the needs of lay parties.
Practitioners should also consider Mr Justice MacDonald’s guide to The Remote Family Court and the examples of good practice and practical suggestions set out in the NFJO report.
For vulnerable parties who are entitled to the protections of Pt 3A of the Family Procedure Rules, it will be important to ensure that participation directions are sufficiently targeted to the circumstances of a remote (or hybrid) hearing.
Remote hearings pose a particular challenge when considering the fair participation of vulnerable individuals
By Siân Smith
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