Judicial conflict in remote hearings

A lack of parity in how family judges exercise their ‘lockdown discretion’ to allow remote court hearings is making things “difficult” 

A lack of parity in how family judges are exercising their ‘lockdown discretion’ to allow remote court hearings is making things “difficult” for judges and lawyers, a family lawyer said.

During the lockdown period, two judgments in public law proceedings have been published in which the judges take a conflicting approach to the question of whether to proceed with a remote hearing.

Each involved serious issues in relation to children.

Anna-Laura Lock, a senior associate at Winckworth Sherwood, highlighted how the judges in each case “took completely different views on the suitability of remote hearings in terms of the giving of evidence by the parties involved”.

In Re P: (A Child Remote Hearings) (2020) EWFC 32 the parties and the judge were prepared to conduct the hearing remotely.

However, at an urgent hearing the President of the Family Division intervened and ruled that the case should not proceed remotely and should be adjourned.

As well as the risk to fairness if proceedings went ahead, the president said: “The more important part… is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court.” 

He also suggested that the parties may have misunderstood advice around remote hearings issued by the judiciary at the start of lockdown.

In the subsequent case of A Local Authority v Mother [2020] EWHC 1086, Mrs Justice Lieven refused to adjourn proceedings, despite the ruling in Re P.

She stated: “Some people are much better at lying than others and that will be no different whether they do so remotely or in court.

“Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating.”

Lock commented that in this “conflicted view” the judge placed less weight on the parties’ demeanour and considered that the veracity of a parties’ evidence is not necessarily affected by how it is given.

“In other words, if a party is going to be untruthful”, said Lock, “they can do so as effectively in court as through a device.”

Lock commented said since the imposition of lockdown, the president has been clear that the decision whether or not to have a remote hearing in family matters is at the discretion of the individual judges.

However, she added: “The lack of clarity from the top does make it difficult for judges and those within the legal profession to understand (and advise on) the correct approach.”

“Unfortunately judges do get it wrong and unfair decisions are being made as the steady stream of reported appeal decisions demonstrates.”

Lock said that though the president has acknowledged a lack of consistency in approach, this will become greater without updated and more prescriptive guidance.

Lieven J’s ruling came just before publication of a report following a rapid consultation into remote hearings in the family justice system.

In giving her decision, she did not feel it “appropriate to adjourn for this research to be produced.

“I would be very surprised if it was sufficiently definitive as to give one correct course”.

The report revealed a range of concerns around issues such as fairness, access to technology and the wellbeing of legal professionals.

Notably, a number of judges who responded to the consultation expressed concerns about taking evidence in contested issues when the demeanour of witnesses is important.

The report stated: “Respondents reported that it is difficult, if not impossible, to judge the reactions of a witness giving evidence or the reactions of a party hearing that evidence, either because they cannot be seen at all… or because they are only visible in miniature.”

It said national guidance would be valuable.