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 and vulnerability
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.
The Nuffield Family Law Observatory Reports
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.
Lessons from the 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:
- Parties are less likely to seek legal advice for a remote hearing because they haven’t understood the significance of the process.
- Parties are less able to follow the proceedings because their ability to communicate with their legal representative, and let them know when they are finding it difficult to follow, is limited.
- Problems with technology have a negative impact on effective participation.
- There may be some negative impact of partly video hearings on the assessment of credibility (but research is inconsistent and conflicting).
- The use of remote hearings makes it more difficult to identify when a party is vulnerable and to put in place suitable measures to ensure their effective participation.
These concerns are echoed by many of those responding to the consultation.
The main themes of concern
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:
- Difficulties accessing technology: parties often do not have adequate credit, data, wifi or devices. There was a lack of clarity as to where responsibility lay for enabling access to technology.
- Lack of support: it is ‘difficult, if not impossible’ for parties to receive the level of support that they would normally, whether from their legal representatives or others.
- Limitations inherent in remote means of communication: lack of face-to-face contact makes it difficult to read body language and to ascertain if a party is following what is happening.
- Difficulties accessing legal advice during the hearing: lack of communication with legal representatives may make it hard to follow what is happening – parents may find it difficult to ask questions if they don’t understand.
- Variation in practice: for example, in addressing the need for breaks to take instructions and give advice.
- Language barriers: the use of interpreters seems to have posed a particular challenge from a practical perspective.
- Intermediaries: challenges had also been encountered in ensuring that intermediaries were able to provide necessary support, although there were also examples of intermediaries working successfully.
- Physical difficulties or disabilities such as impaired hearing: mean that it is particularly difficult to engage with telephone hearings.
- The pressure to proceed: a member of the Association of Lawyers for Children reported clients feeling under pressure to agree to arrangements for hearings that are ‘contrary to their own entitlement to fair process’.
- Lack of privacy: safety issues may arise where domestic abuse is an issue or children might be present.
- Domestic abuse cases: examples were given of alleged victims and alleged perpetrators waiting alone together on the line for the judge to join. Some victims have felt distressed as the hearing is effectively taking place in their
homes. For others, however, remote hearings have been an improvement on attending court.
- Removal of newborn babies: difficulties have been encountered with mothers consulting with legal representatives and joining the hearing from hospital with limited technology, lack of privacy and the care of a newborn baby.
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.
Staying alert: lessons for practitioners
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.