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Since then there has been some updated guidance and, importantly the results of the first consultation on remote hearings.
Guidance
Firstly, version 4 of the Remote Access Family Court: Covid-19 was published and came into effect on 17 April. It now covers judicial discretion as to remote hearings; cases involving children; financial remedy case; and also considers issues such as fully video hearings.
MacDonald J states that the guidance “should not be taken as establishing a settled mode of operation for the family courts that will apply without more after the resolution of the COVID-19 crisis”.
This was followed by a key report following the snap consultation into remote hearings in both public and private family cases, and to all types of those hearings.
Consultation outcome
The President of the Family Division announced the consultation in mid-April following the sudden shift to remote court hearings which was triggered by the coronavirus pandemic, and saw court buildings shut down for the most part. Since then, remote hearings have taken place for routine work and other cases that have been deemed by judges to be suitable – though even in this respect, judges are taking different approaches (see below).
The consultation report was published in early May and revealed significant concerns around issues such as fairness, access to technology, and concerns as to how some cases had been remotely conducted. Of major concern to many was the impact on the wellbeing and mental health of practitioners and particularly, judges.
The consultation, conducted by the Nuffield Family Justice Observatory, received a swathe of responses from interested parties. More than 1,000 took part and gave their views and practical experiences of remote hearings. Of the respondents, at least 68 per cent were lawyers or members of the judiciary and the vast majority (94 per cent) had already taken part in remote hearings.
Many said they would welcome national guidance on remote hearings in the family courts. Most felt remote hearings were justified for certain hearings given the crisis and some felt this way of working could continue in certain cases in the future.
But though many reported examples of good practice around management of the process itself, together with suggested future good practice, there were significant concerns on a range of issues. The respondents’ words to the researchers speak for themselves:
One barrister said: “There is a real risk that the truth will not surface if we insist on proceeding remotely and indeed, in my view, it is at real risk of being suppressed and manipulated. The inability to fully observe a party/witness both in court and outside the courtroom door is also an important tool in the advocates preparation and judicial analysis. I think by seeking to conduct contested hearings remotely we shall undermine public confidence in a system many are already highly critical of.”
Another barrister said: “Lay clients have felt disheartened, like they have not had a fair hearing and that the judge was not interested in hearing the case. This is across the board with all my cases.”
Problems were raised round the lack of face-to-face contact. This, said respondents, made it difficult to read reactions and communicate in a humane and sensitive way. One judge said: “There is no opportunity to look them in the eye, to convey to them your own humanity, to either encourage or warn.”
There were also concerns around confidentiality and privacy; and over language barriers, hearing or cognitive issues; and poor tech connections.
More specific concerns were raised by a number of respondents around particular groups of people. Those included the parties in domestic abuse cases, those who had a disability or cognitive impairment or where an intermediary or interpreter was required. Some cases are simply not suitable for remote hearings, such as public law children matters.
But feedback was not all negative. Said one solicitor: “I can say that my client felt that the meeting was very helpful and the technology so simple that it led to the smooth running of the hearing.”
Mental wellbeing
As the covid-19 crisis wears on, it has become increasingly well-known that video conferencing via Zoom, Face-Time, Skype, etc in general is mentally tiring, so it comes as no surprise that many respondents reported negative impacts on their wellbeing and mental health.
Family judges in particular report serious concerns around mental wellbeing. One judge said: “I have found myself working from 8am until after 12 midnight (and through to 3am) on several days simply to keep the system ticking over. I am not convinced that this can be maintained over several months.”
Another judge commented: “Well-being has gone out the window completely” and another warned that judges could start going off sick.
The report recommended further work on remote hearings and their impact.
Conflicting approaches
There are concerns not only around what types of case are suitable for remote hearings and which are not; but there is also a lack of parity between judges as to whether a specific case is suitable. It is for individual judges to exercise their discretion whether or not to allow a particular hearing to proceed remotely.
Two recent decisions (both in public law proceedings) lay bare this discrepancy and, therefore, the need for clarity, though there cannot be one uniform approach as every case and its circumstances are unique.
In Re P: (A Child Remote Hearings) (2020) EWFC 32 the parties and the judge were all prepared to conduct the hearing remotely but the President of the Family Division intervened at an urgent hearing. He made the decision that it should be adjourned saying: “The more important part… is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court.”
In the subsequent case of A Local Authority v Mother [2020] EWHC 1086, Lieven J refused to adjourn proceedings, despite the President’s ruling in Re P. She commented that some people are “much better at lying than others and that will be no different whether they do so remotely or in court”.
She added: “Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating.” She thought it not possible to say as a generality that a remote hearing is less good at getting to the truth than a hearing in a courtroom.
It is early days in the late arrival of remote hearings and there is much work to be done.
