The covid-19 pandemic has changed all of our lives, in ways that would not have been imaginable for most of us before the first lockdown.
For most lawyers, even those involved in litigation, which would ordinarily require them to attend court for hearings, working from home has become the norm, as have remote hearings.
We are all trying to work out how this will affect our working practices in the future. Are we moving towards the era of the virtual justice system – and even the virtual law firm? Or are we going to see, at some point in the hoped-for, not too distant, future, a move back to in person meetings, the court building, and to the office, and something akin to ‘business as usual’? Or is the likely outcome somewhere in the middle – are we going to retain elements of working, and litigating, from home, but ultimately retain office space and the need for some hearings or alternative dispute resolution (ADR) to be in person?
Depending on who you ask, the need to maintain in-person client relationships, a firm’s culture, the need for supervision of younger lawyers, the need for collaboration and so on, will top people’s agendas. Equally, there will be others who say they are more productive and happy working from home, and that clients should have no issue with meeting remotely.
Remote hearings are also, some will say, working just fine, save for the odd WiFi blip. These subjects are occupying the thoughts of lawyers and civil servants, not just here in England, but across all four nations of the UK, and across the world.
But what, specifically, of the family lawyer and their lay client? Recent figures released by the MoJ show a steady increase in the use of video hearings (usually on the cloud video platform) since the start of the pandemic – with currently around 65 per cent of all family cases being heard by remote video conferencing.
Before considering the future, it is probably worth describing what the family lawyer’s lot, and the family justice system, has looked like since the start of the pandemic. And before doing that, it is worth reminding ourselves of the varied kinds of work actually undertaken in the family justice system.
We say that because our experience of family justice will be very different from the experience of the legal aid lawyer who specialises in public law children (care) work, or indeed the specialist in child abduction work, both of whom do much more important work than we do from a public good perspective. It is also very different work, both in terms of the law, forum and typical client that we do, being solicitors at Forsters LLP in Mayfair, which involves financial remedy litigation and ADR, private law children work and wealth planning by way of pre- and post-nuptial agreements.
Following the September 2020 consultation by the Nuffield Family Justice Observatory (NFJO) on remote hearings in the family justice system (the second to be commissioned by the president of the Family Division), the results of the survey clearly show a disconnect between the experiences of professionals (social workers, police, teachers, GPs and other health professionals) and those of parents and families.
A survey of 132 parents who had used the remote court process showed just under half had not understood what had happened during their hearing. Such issues are compounded in public law work, with barristers and judges commenting, by way of example, that the courts were dealing with removal orders from mothers shortly after giving birth. The mothers would have no support and have to join the hearing by phone from their hospital bed. Judges commented how it is hard to show any kind of empathy in such situations.
In addition, and applicable to all cases across the family law spectrum, is the diminishing gravitas and respect shown to the court by not being physically present in the court room. Apparently one magistrate heard a party plastering during a private law children hearing.
The most recent iteration of The Remote Access Family Court, version 5, was issued by Mr Justice MacDonald on 26 June 2020. That the document went through so many iterations in such a short time space of time tells us two things in particular.
Firstly, that the family justice system initially struggled, inevitably, to cope with the impact of the pandemic, and the management of alternative ways of working and dealing with cases. Secondly, that, following the initial blizzard of guidance, we have settled into a way of working which at least in theory ‘works’ and has needed less tweaking – but has generated a backlog.
As MacDonald J said at 1.4: “this paper continues to conclude that the Remote Access Family Court is best realised at the current point in time, and with respect to both remote and hybrid hearings, as a collection of ‘off the shelf’ remote communications platforms being used to achieve the single aim of keeping business going safely in the Family Court and Family Division of the High Court”.
After 12 months of lockdown after lockdown, the question is less about whether the family justice system can function remotely and keep business going safely – including lawyer– client interactions. Plainly, it can do so, and that it has been able to do so is of enormous credit to all those who have helped this happen. The question is more about whether it is, in the longer term, a way of working which is fair, sustainable, satisfactory, or optimal.
Here, we must think of our clients in particular. It has been imperative to keep the system going. But certainly, our experience, backed up by the NFJO consultation, has been that remote family justice has been much more satisfactory for lawyers than their clients, but by no means all lawyers. In its recent wellbeing survey, Resolution reported that around a quarter of family lawyers “are on the verge of quitting the profession” and three quarters reported an “increase of work-related pressures” in lockdown.
Further, everyone has experiences that stand out. One of ours concerned a contested ‘leave to remove’ final hearing (for the non-family lawyer, this is where one parent wishes to take the child or children to live in another jurisdiction and the other parent does not consent) which was listed in the Central Family Court.
We arrived at court only to find our hearing had been vacated by virtue of the pandemic. Except that the application involved children who, if they did not leave the jurisdiction over the Christmas holiday, would face a real risk of harm. Their father, the primary carer, had lost his income due to the pandemic, was in arrears in respect of rent, and was struggling to make ends meet. He needed to go home and to find work in a place where he had much more extensive connections and a much greater ability to gain employment. The mother was living in a third country, although she was in the UK leading up to and for the hearing.
Had we not physically been at court, there was no way in which we could have prevailed upon the court to reinstate the hearing, to ensure both parties were present (the mother had left court upon learning the hearing had been vacated), to help the parties to reach agreement through counsel in the corridors of the mostly empty court building (a negotiation that would have been next to impossible remotely, without the threat of an in-person hearing continuing, absent agreement), and to deal with the form of the order.
Of course, in theory all of this could have happened remotely. But the chances of that happening would have been as remote as the hearing itself. This example also highlights the importance of being in court, with all the solemnity and authority it brings. Another problem with remote hearings is the inability to physically regroup as team in a separate room of the court during breaks/lunch, for the ability to give advice/receive instructions. There are technological work-arounds, but they are far from ideal.
Another example was an ‘FDR’ hearing (for non-family lawyers, this is a form of court-based early neutral evaluation aimed at assisting parties to settle financial proceedings on divorce without an expensive trial) prior to which both parties had spent many thousands of pounds in preparation. The case had been given a remote window. The wife’s QC made his submissions. The Judge called upon the husband’s counsel to make his. The barrister was not there. When he was let in, it was apparent he had not been there for the totality of the wife’s QC’s submissions, and was ready for the hearing to start, not knowing he had just missed half of the hearing. Cue general panic. Would the hearing have to be re-listed?
In the end, it was agreed he could respond to the wife’s written submissions. Inevitably, for all his skill, they did not quite hit the points that had just been heard. The judge gave an indication, but it was never going to command the confidence of both parties, or indeed their legal representatives. Needless to say, the case did not settle. It was the last thing the case needed, and must have been a source of great upset to both lay clients, who were already faced with trying to negotiate a complex financial settlement entirely remotely.
These experiences, but also countless others, have left us feeling like it is imperative that whatever the future of the various different types of family justice looks like, the lay clients, and, where applicable, their children, must remain front and centre – and that most lay clients based in the UK are going to want at least some in-person meetings to build rapport with lawyers – and a justice system that they can access in person for most hearings.
As family lawyers, we deal with the most intimate details of their lives – why their marriage broke down, where their children should live, what their financial needs are – and we should not be surprised if our clients want to impart that information, and receive advice, in person, more often than not.
Ditto court hearings – we think most lay clients in the family law arena (particularly those involved in children proceedings but also financial proceedings) are going to want to see the judge dispense justice in person, if big decisions are being made about their lives.
Finally, it appears this would be welcomed by the judges themselves, who have described the loneliness of dispensing justice from a screen. Some remote working and remote family justice may be here to stay – but we think in family law the future is likely to be predominantly ‘in real life’ (or IRL!).
Matthew Brunsdon Tully is a Partner and employed Barrister with the Family Law team at Forsters: forsters.co.uk/people/matthew-brunsdon-tully