Remote hearings: well-being has 'gone out the window'

Significant concerns around the fairness of remote family court hearings and access to technology have been identified by a snap consultation.

A report, following a two-week consultation on remote hearings in the family justice system, also revealed a serious impact on the mental wellbeing of professionals, particularly members of the judiciary, as well as concerns around how some cases had been remotely conducted.

The consultation was announced on 14 April by the President of the Family Division in view of the pandemic-associated social distancing which necessitated a prompt shift to telephone and video hearings.

More than 1,000 people responded to the call for evidence, of which at least 68% were lawyers or members of the judiciary.

Around 94% said they have taken part in remote hearings.

The Nuffield Family Justice Observatory has now published its report into the issues, with many respondents saying they would welcome national guidance.

Most are reported to have said that remote hearings were justified for certain cases in the current circumstances; and some felt this way of working could continue for certain cases in the future.

Though there were “many examples of emerging good practice”, mainly around the management of the process, “significant concerns” were also reported by respondents, including around the fairness of some remote hearings in certain cases.

One respondent barrister said: “There is a real risk that the truth will not surface if we insist on proceeding remotely and indeed, in my view, it is at real risk of being suppressed and manipulated.

“The inability to fully observe a party/witness both in court and outside the courtroom door is also an important tool in the advocates preparation and judicial analysis.

“I think by seeking to conduct contested hearings remotely we shall undermine public confidence in a system many are already highly critical of.”

The report also reported “worrying descriptions of the way some cases had been conducted”, chiefly related to cases where not having face-to-face contact made it difficult to read reactions and communicate in a humane and sensitive way and issues of confidentiality and privacy.

There were also difficulties in ensuring a party’s full participation in a remote hearing “for a variety of reasons” such as language barriers, hearing or cognitive issues and poor tech connections.

Specific concerns were commonly raised in relation to specific groups of people such as parties in domestic abuse cases, parties with a disability or cognitive impairment or where an intermediary or interpreter is required.

The report also revealed the extent of the negative impact of remote hearings on professionals’ wellbeing, with judges appearing particularly to feel the effects.

Anna-Laura Lock, a senior associate at Winckworth Sherwood, noted that the report “identified that the negative impacts are being felt most often in those cases felt to be the least suitable for remote hearings; typically in public law children matters for which court time is understandably being prioritised.

“As one judge put it: ‘There is no opportunity to look them in the eye, to convey to them your own humanity, to either encourage or warn.’ The report asks whether remote hearings in these sensitive cases can ever be justified.”

One judge said: “I have found myself working from 8am until after 12 midnight (and through to 3am) on several days simply to keep the system ticking over.

"I am not convinced that this can be maintained over several months.”

Another said: “Well-being has gone out the window completely” and another warned that judges could start going off sick.

The report said further work is required to ensure the impact of remote hearings during the pandemic can been researched effectively in order to inform future practice.