Remote Hearings – Are they the future in Family Courts and should they continue?
The Nuffield Family Justice Observatory (NFJO) has published a report called: Remote hearings in the family court post pandemic. They received from over 3,200 professionals and parents and other family members from across England and Wales a responds to the consultation (conducted between 10 and 27 June 2021) about which aspects of remote hearings could continue as the family court enters its ‘recovery’ phase following the COVID-19 pandemic.
The majority of professional respondents saw a continuing role for certain types of remote hearing, although many felt that the decision should be made on a case-by-case basis. The main considerations respondents identified as relevant to such a decision were the vulnerability of lay parties and their wishes and views, the complexity of the case, and whether there was access to suitable technology for all those taking part. There were particular concerns about the use of remote hearings where intermediaries were required. There were many concerns about the challenges of managing remote hearings where interpreters were required and many concerns about the challenges facing litigants in person.
Overall, there was support for remote ‘administrative’ hearings (subject to certain caveats) such as:
- case management hearings (“CMH”),
- first hearing dispute resolution appointments (“FHDRA”) and also for
- initial and/or ex parte applications for non-molestation/occupation orders.
There was much less support for remote fact-finding hearings, hearings involving contested applications for interim care or contact orders, or final hearings.
Many barristers, solicitors, local authority lawyers, social workers, Cafcass and Cafcass Cymru advisers and guardians highlighted the positive impact of remote hearings on their time and working patterns.
Used technology for the remote hearing
Despite the majority of respondents expressing a preference for video hearings over telephone hearings, many hearings are still being conducted by phone. One in three (33%) parents who responded to the consultation had joined a hearing by phone, even if the hearing was being held by video conference.
While respondents raised similar concerns about connectivity and access to appropriate technology to those raised in previous consultations, many respondents reported that the technology to support remote hearings had improved. A variety of video platforms continue to be used. Professionals reported mixed experiences of Cloud Video Platform (CVP); some reported it was working very well, whereas others reported a poor experience.
Respondents’ concerns about video technology normally related to the quality of connection and access to appropriate hardware (screens and loudspeakers). These difficulties affected professionals as well as parents, but the majority of concerns related to the difficulties parents experienced in fully participating in hearings. The vast majority of parents received no help in accessing the technology to take part in the hearing. Ensuring remote hearings work fairly and smoothly
A majority of professionals (63%) felt that more needed to be done to ensure that remote hearings were fair and worked smoothly Some professional respondents commented that remote hearings would always be inferior to hearings in person. A majority of parents (83%) indicated that they had concerns about how their case was dealt with.
A majority of parents (73%) indicated that they did not feel supported during their hearing(s). For many parents this was because they did not have legal representation or other support: just under half (46%) did not have legal representation. Others raised concerns about not being able to be with their legal representative during the hearing and the difficulties communicating with them as a result.
Remote hearings in the family court post pandemic
Professionals and parents continue to raise concerns about the fairness of remote hearings and highlighted similar issues to those reported in previous consultations, including the difficulties experienced by lay parties accessing technology to fully participate in hearings, the lack of legal and other support for parties before and during the hearing, concerns about privacy and confidentiality, and concerns about the particular communication needs of some parents not being met.
There were also concerns about the way remote hearings were being run, with hearings being arranged at short notice, insufficient information provided in advance, hearings being rushed and court papers not being available. Both professionals and lay parties raised concerns about the impact of remote hearings on maintaining the authority of the court.
Many responses painted a picture of a system under extreme ongoing pressure and noted that, while there was concern about the delays in cases, this needed to be balanced against ensuring justice and fairness. Some of the causes of delays were specific to the pandemic (such as technological problems, adjournments because and in-person hearing was required, problems of communication between parties and their legal representatives, and reduced opportunities to assess children and families). Other factors pre-dated the pandemic but had been exacerbated by it (such as resource and capacity pressures in local authorities, limited judicial and court capacity, delayed expert assessments and family members coming forward late in proceedings).
Around half of parents and professionals who had attended a hearing in court felt that all the necessary safeguards were in place to ensure COVID-19 safety. Some felt that the restrictions were too strict and could be relaxed further, others felt there were insufficient safeguards in place. A common concern was limited ventilation in court rooms. Respondents were asked whether they had wanted to attend court and had been prevented from doing so and a majority of professionals (92%) responded negatively to this while 39% of parents reported that they had wanted to attend court but had been prevented from doing so. In most cases the decision to list the hearing as remote was seen to be the decision of the judge or Her Majesty’s Courts & Tribunals Service (HMCTS) staff. Professionals raised concerns that hearings were often remote ‘by default’. Some parents indicated that they were not given a choice about how the hearing was conducted and were told the courts were closed due to the pandemic.
Suggestions for good practice
Respondents stressed the need for flexibility in deciding whether a hearing should be held remotely, with many feeling that parents should have the deciding voice on the format to be used.
Remote hearings in the family court post pandemic
Professional respondents and parents gave examples of good practice in the running of remote hearings and some respondents made specific suggestions about how remote hearings could be better run, including making sure lay parties and their representatives were better prepared for the hearing, checking access to technology/links before the start of the hearing, providing better written guidance to parents and professionals and improving the technology. It was of note that while many professionals suggested there should be more places where parents could go to be with their legal representative or other support to attend the hearing remotely, only 4 of the 174 parents who responded to the consultation indicated that they had been provided somewhere to attend the hearing.
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