How well are remote hearings working?

How well are remote hearings working?

As we reported here previously, the Family Court is now conducting many hearings remotely, because of the Covid-19 pandemic. The hearings are taking place via telephone or video conferencing, rather than in a courtroom. Some or all of those involved, which could include the judge, the lawyers and the parties, is at a separate, remote, location – in many cases, their home.

But just how well are these remote hearings working?

Well, we now have a first indication, and it is quite instructive, especially for anyone facing the prospect of a remote hearing.

 

Rapid consultation remote hearings

In view of the importance of the issue of remote hearings, last month the President of the Family Division Sir Andrew MacFarlane asked the Nuffield Family Justice Observatory, an independent organisation committed to improving life for children and families by putting data and evidence at the heart of the family justice system, to carry out a rapid consultation on the use of remote hearings in the Family Court.

The consultation ran for two weeks, and well over 1,000 people responded, including judges, lawyers, Cafcass, parents, and other interested groups.

The Observatory has now published a report providing an overview of the consultation responses. We will summarise here some of the points raised by the responses, that we believe will be of most interest to any litigant who faces the prospect of a remote hearing.

 

What type of hearings are conducted remotely?

Obviously, not all Family Court hearings will be suitable for remote hearing, as we explained here just recently.

The respondents to the consultation reported that they had experienced various types of hearings being conducted remotely, including ‘directions’, or case management, hearings (where the court directs what needs to happen before a final hearing takes place), interim hearings (where ‘temporary’ orders are made, pending a final hearing), and final hearings.

Clearly, directions hearings and, to a lesser extent, interim hearings are more likely to be suitable to be conducted remotely, as no final orders are made at those hearings. More care will surely have to be taken as to the suitability of conducting a final hearing remotely.

 

Fairness and justice family photo

This is perhaps the most important issue: is it possible to conduct the remote hearing fairly?

Respondents to the consultation raised various concerns, including difficulties arising out of the lack of face-to-face contact (remote hearings are impersonal), and difficulties for the passing of instructions from clients to lawyers.

Some respondents also expressed concerns about parents, and sometimes legal representatives, not receiving adequate information in advance about how the hearing was going to be conducted, and how they could take part.

Another big concern was about the confidentiality of proceedings when conducted remotely, for example where other people are in the same room as someone who is involved in a remote hearing. Clearly, anyone who is not a party, including any children, should not be present.

 

Technical issues

Obviously, remote hearings rely upon technology. All parties must have reliable access to the appropriate technology, and must be confident in using it. That is not the case with everyone.

And it may transpire that certain types of technology may be more suitable than others.

The judge conducting the hearing will also need to make it clear at the outset how he/she expects the parties to use the technology, for example muting microphones when not speaking.

And then there is of course the issue of telephone or internet connections dropping, which can lead to delays, or even to hearings having to be abandoned.

 

A positive or negative experience?smiling girl on beach

Overall, then, did respondents find remote hearings to be a positive or a negative experience?

Well, it seems that the jury is still out. Most respondents said that there were both negatives and positives, and those respondents who expressed a definite view one way or the other were pretty well evenly divided.

Whatever, it seems that remote hearings will be with us for some time to come, and may well remain a part of the family law landscape even after we are finally rid of this awful pandemic.

There is much more in the report, including suggestions for how remote hearings might be undertaken in future. If you want to read the full report, you can find it here.