The future of remote court hearings
The future of remote court hearings
The family justice system has toyed with the idea of remote court hearings, conducted by telephone and/or video link, for many years. Progress was slow, with it looking unlikely that remote hearings would be used in more than a handful of test cases anytime soon.
And then came the pandemic. Suddenly, everything changed. Social distancing rules meant that most court buildings had to shut. The only way for the system to keep going was for it to take up remote hearings, and quickly.
Remote hearings, whilst not without their problems, have generally been considered a great success. But their widespread use was only intended to be temporary, to get us through the duration of the pandemic.
And whilst the pandemic is certainly not over, we can at least now start to think of a future when it will no longer dictate our actions.
And that is just what the President of the Family Division Sir Andrew McFarlane, the head of family justice, has been doing in relation to remote hearings.
In a speech given to the Family Law Bar Association annual conference in Manchester Sir Andrew said that, rather than handing out guidance, he will continue to leave the decision as to whether a hearing should be conducted remotely to the judge in charge of the case.
One of his reasons for this is that whether a remote hearing is appropriate could depend upon geographical factors, such as distance from court and the availability of public transport – what may be appropriate in a big city may not be appropriate in Cornwall or Cumbria.
No return to the old ways – remote court hearings
Critically, Sir Andrew made it clear that there will be no return to the old ways of all hearings taking place at court. He said:
“No one working in the Family Court … now expects a return to the status quo, in terms of working practices, that existed in February 2020. Supported by enhanced IT, the courts have now become used to remote working and, for an appropriate hearing, and there will be many, this should now be the format of choice.”
However, he went on to say that people involved in court proceedings should normally be physically present at court on those occasions when an important decision may be taken. And the main reason for that is that remote hearings do not afford the parties and their lawyers to enter discussions prior to the hearing, as is the case with hearings at court. Those discussions are very important, and often result in matters being agreed before the hearing takes place.
So what are the hearings at which an important decision may be taken? Sir Andrew gave a number of examples, including the first hearing in children applications between parents (the First Hearing Dispute Resolution Appointment, or ‘FHDRA’); the Financial Dispute Resolution hearing (‘FDR’) in financial remedy proceedings (where the parties are expected to try to settle the case); and, of course, final hearings in all types of case.
Other hearings, for example hearings at which the court simply gives directions as to how the case should proceed, may more appropriately be dealt with remotely.
Many family cases, especially public law children cases involving social services, make use of evidence from experts, such as child psychiatrists and psychologists. Obviously, such people are very busy, and their time is extremely valuable. Accordingly, Sir Andrew indicated that it is likely that they will continue to give their evidence remotely.
He also indicated that it may also be appropriate for CAFCASS officers and social workers, both of whom are currently under extreme pressure of work, to attend hearings remotely.
Lastly, Sir Andrew said that when deciding whether a hearing should be conducted remotely judges should take into account health issues, whether raised by a party or a professional.
In short, remote hearings are clearly here to stay, and anyone involved in family court proceedings, whether now or in the future, is going to have to expect to take part in one.