This time last year, we thought we would be waiting years before remote hearings became a regular feature in the family court. When the first lockdown came in March 2020, they were suddenly a reality.
The family justice system could not and did not shut down. Delay would lead to children and families suffering and being put at risk.
So remote hearings were quickly scrambled together, with various platforms being used and applicants and judges alike struggling to get their laptops or mobile phones working in a room at home where they could not be overheard by family members – and where the wifi just about reached.
In the new year things, are different. We have had time to experience, review and adjust the way in which family justice is delivered remotely during this unprecedented and terrible pandemic. Guidance has been given and given again. More guidance may be needed.
We have a formula for how these hearings work, with standard directions setting out what the arrangements should be, which platform is to be used and who is responsible for doing what. This has enabled many cases to continue despite restrictions imposed as a result of covid-19.
This is something to be proud of, but there is still a need for improvement. Not everyone has a laptop or wifi, or a quiet office or loft where they can spend what can be long and lonely days in a final hearing; without being interrupted by children who may be home from school and need caring for.
Remote hearings have generally worked well for administrative hearings where no one needs to give evidence.
However, the family court makes difficult decisions about people’s lives that can have lifelong implications. Should a mother be allowed to keep her baby? Has a father abused their child? Should someone be committed to prison for breach of a court order?
These cases can turn on the evidence given by those involved.
The judge must be able to hear clearly what is being said and see the nuances of the how the evidence is delivered and the reactions of the other participants. This would be the case if the matter is heard in court with all parties attending in person. Remote hearings cannot replicate a court room but they do the next best thing.
One problem identified in the Nuffield follow up consultation on remote hearings in September 2020, was the lack of support for participants once the hearing has ended.
A mother who has just heard that she will not be getting her child back should not be left alone at home, without the ability to even call on friends or relatives. If she was in court, those around her would see that she needs help.
The responsibility of the justice system does not end when the judge hits the red button on Zoom or hangs up the phone.
Others did not feel like they had had a fair hearing, or a hearing at all, particularly if the hearing was conducted by telephone. The judge could not see them as a mother or a father. It was difficult to follow what was going on. It did not feel like a formal court hearing. It did not feel like justice.
These are just some of the problems that have emerged, but what are some of the solutions?
• It is essential that careful consideration is given to whether a matter is suitable to be heard remotely. This will depend on the facts of each case and it may be that a socially distanced hearing in person, or a hybrid hearing, is necessary.
• Thought needs to be given at all stages as to whether anyone needs support that can only be delivered in person, such as by an interpreter or social worker.
• The right technology needs to be available to everyone to ensure an effective and fair hearing can take place. This can be done by providing hearing hubs at local authorities, law firms or barristers’ chambers.
A hearing in person at court will remain the gold standard, but it is safe to say that remote hearings are here to stay, even if they will be the exception rather than the rule once this pandemic is over.
The lessons we have learned and continue to learn from this experience will need be utilised to ensure we can continue to deliver family justice for all – regardless of whether or not we are facing a pandemic.
Emma Nash is a partner in the family team at Fletcher Day