Rapid consultation findings in Covid-19 era on remote hearings in the family justice system

As a result of the outbreak of Covid-19 and the urgent need for the implementation of social distancing, the President of the Family Division, Mr Justice McFarlane asked the Nuffield Family Justice Observatory to undertake a rapid consultation on the use of remote hearings in the family courts. They have had to adapt quickly to reliance upon telephone and video hearings and given the emotional and anguished nature of many of these cases, the new way of working called for urgent assessment.

The rapid consultation ran for two weeks from 14 to 28 April 2020. There were more than 1,000 participants. The outcomes in terms of negative and positive responses were evenly balanced but in cases which were not straightforward, or more than procedural, concerns were raised in relation to some of the following areas:

• Restrictions presented by remote platforms in terms of reading human emotion and body language and not being able to communicate effectively in a ‘humane’ way
• The obvious difficulties of ensuring genuine and full participation in a remote hearing by all parties, and
• Specific issues of confidentiality and privacy
• Where parties were more vulnerable, either as a result of abuse, impairment or speech and language difficulties, concerns were heightened
• Technology
• Guidance

The ICCA has issued guidance on the conduct of remote hearings for advocates and some of this guidance is relevant in these findings. There is a lack of clarity about who takes responsibility for hearings, who records it and how bundles are managed. ‘Zoom-fatigue’ or its equivalent has become an issue for many advocates and judges working in this new era of video hearings; it is exhausting and is taking its toll on the health and wellbeing of many working in the justice system. There are weaknesses in not being able to have a channel for private consultation and conference.

In the family courts, the consequences of some of the hearings taking place is life-changing and potentially catastrophic for parties. Enabling parties to participate fully and in a place of safety with adequate technological provision is a considerable challenge.

91% of the respondents to the survey were legally qualified or working within the family justice system. Only 3% of respondents were parties. Of those who did respond, 94% had taken part in a remote hearing.

Areas of Concerns

Fairness was a major area of concern.

It is worth remembering that in the guidance for Courts and Tribunals Judiciary, ‘The remote access family court’ by Mr Justice MacDonald, first issued on 23 March 2020, begins with a quote from the President of the Family Division:

“Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”

The Nuffield report highlights that, “despite evidence of considerable variation in court and local authority practice across England and Wales, there was remarkable similarity in the types of examples given by respondents to illustrate their concerns.’

Face-to-face engagement

A lack of face-to-face engagement between those working in the family courts created distressing reports of anguish among parties, judges and advocates. Some of the personal reflections of respondents to the report underline the human element of these types of cases and the fact that the family courts are not simply administering justice; there is a need for complex interactions and not just in contested cases.

Full Participation

These problems stemmed not only from the failure or lack of available technology but also difficulties hearing and understanding the process; a lack of confidence and familiarity with remote working; as with the criminal courts, cases with interpreters are ever more complicated and litigants in person suffer more than most. For victims of abuse and domestic violence being connected to the perpetrator even remotely was very traumatic.

Lack of Preparation

There is still a lot of uncertainty about the way to manage and control these hearings and who had responsibility for that, which left some parties feeling alienated and confused.

Privacy and Confidentiality

These problems are exacerbated for parties in family cases where they have to participate from home and often do not have a private space or cannot speak openly in front of their children or partner. One mother had to give evidence from a garden shed about the prospect of having her children removed from her care while they remained in her family home.

Some parties reported preferring the remote style hearings to avoid face-to-face contact with an alleged abuser.

High stakes cases including those where babies are to be removed from the care of a mother, sometimes still recovering from having given birth, did not seem to many, to be appropriate for this kind of hearing.

Lack of opportunity to build evidence for cases

As a result of the reduction in some frontline services, it has been reported that some parties have found it hard to establish core elements of their case as a result of not being able to have contact with children or babies; Others have not been able to demonstrate improved changes in behaviour or improvements in addictions, for example.

Technology

The report highlights a plethora of technological problems from opportunity to access a device, failings of some of the operating systems and access to stable Wi-Fi.

Suggestions for better practice

It is easy to see why the list of required guidance is so long as so much remains to be resolved to make this new away of working as effective as possible. There will always be cases of this type which are simply not suited to disposal in this fashion.

Thought should be given to places of safety where participants might access technology and participate fully; research is required to assesses the impact and more training is required for judges and advocates.

Commended

In spite of the speed of the report’s production and the fluid way in which the landscape is changing, there is much to be learnt and much to grapple with for all those engaged in the family courts. It is a highly informative report and a valuable snapshot of an emerging picture of justice for those involved in this highly sensitive area.