With a second lockdown underway, the move to remote working has, for many people, been a seamless transfer with many of the associated technical and practical issues ironed out during the summer. But for some people in the family justice system, the prospect of continued remote hearings will lead to a sinking of hearts.
In April, at the behest of Sir Andrew Macfarlane, President of the Family Justice Division, the Nuffield Family Justice Observatory carried out a research project in order to determine how well remote hearings were functioning and whether those involved felt that they were fair and that justice was being served. The upshot was that most family law practitioners (judges, barristers and solicitors) felt that remote hearings were working, on the whole, fairly well although there were widely-felt concerns about specific aspects and use of remote hearings in certain circumstances.
The group of respondents who felt less certain that remote hearings were fair were the individuals themselves, particularly parents involved in hearings relating to their children, and some of the support organisations helping those parents. Family law practitioners also referred to individual cases where remote hearings were problematic either because of the way in which they were conducted, technical difficulties, or simply the lack of face-to-face interaction.
Nonetheless, the use of remote hearings has prevented an unmanageable back log of cases building up and has proved particularly effective in some areas such as case management hearings. Several respondents also noted that remote hearings helped them to manage their time better with no travel and reduced waiting times at court.
Inconsistent conduct of hearings criticised
Nonetheless, there were a significant number of concerns raised that Sir Andrew acknowledged required further examination, not least as the general view is that, pandemic or not, remote hearings are here to stay in some form or another. One frequently voiced concern was the lack of consistency across the country in how hearings were set up and conducted, the video/audio platforms being used and the level of technical support provided by individual courts.
Complaints relating to technology and the technical competence of users were frequent, and many practitioners noted that some of their more vulnerable clients were significantly disadvantaged by not having the necessary equipment, access to wi-fi, or sufficient data capacity to be able to connect. In addition, several lawyers noted that technical issues meant their clients could not conduct private discussions with them either because of technical drawbacks or because remote hearings were conducted with insufficient breaks.
It appears that some courts, local authorities and other professional parties were much better equipped to conduct remote hearings and able to give their clients more support than others.
Human empathy the missing factor
Another major area of concern was the lack of face-to-face interaction. Respondents referred to empathy and humanity being critical aspects of family hearings, both of which were largely lacking in a remote environment. Indeed, one judge noted: “The court process is more important than simply being an administrative adjudication.
It’s a very human set of interactions. My role as a judge is absolutely dependent on the humane administration of a very, very complex interactive process.”
Several examples were given of where the use of technology singularly failed to deal with some of the acute sensitivities applicable to certain cases, such as safeguarding decisions to remove new born babies from their mothers. As several respondents noted, in complex situations, it is important for judges to be able to interpret body language which is more easily done face to face than via video conferencing.
Confidentiality and privacy issues were also considered problematic in remote settings where, despite judges informing parties of the need for confidentiality, there was always the risk that the hearing could be recorded or that other, non-involved parties could overhear proceedings. This was particularly difficult for parents without childcare and without somewhere private to participate in the hearing. There were also problems with people not fully understanding what was happening and feeling unable to interrupt to ask for an explanation.
Remote hearings are here to stay
However, there were some positive themes. Some respondents, particularly those where domestic violence was an issue, felt safer not being face-to-face in court with their abuser and others felt that, properly managed, remote hearings were efficient and productive. It is fair to say that now the genie is out of the bottle, it is unlikely that we will return to a purely court-based system of family hearings. It is clear that our enforced experiment with remote hearings will lead to changes, not least with more guidance being issued by HM Courts & Tribunals Service about how they should be organised, supported and conducted online so that we have a consistent approach country-wide.
It would also help to have guidance on how to support clients who cannot access technology or who lack the equipment and / or appropriate space to participate in a remote hearing effectively and safely.
