Can families receive justice with remote hearings in the Family Court?

The Remote Access Family Court has enabled large parts of the family justice system to continue to operate during the Covid-19 pandemic. Each day, justice is dispensed over the internet by judges sitting at computer screens often in their own homes, with parties and lawyers joining hearings remotely.

Roshni Popli summarises how things have developed since the start of the lockdown and highlights some of the problems raised by the Nuffield Family Justice Observatory.

In Re A (Children)(Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583, the central decision on the issue of remote hearings, the Court of Appeal emphasised certain ‘cardinal points’:

i.    The decision of whether to conduct a remote hearing and the means by which it is heard are matters for the particular tribunal hearing the case.

ii.   The decision is a case management decision over which the tribunal has a broad discretion.

iii.  Guidance from senior members of the judiciary is simply guidance.

iv.   The temporary nature of any guidance, indications and even court decisions on this issue should always be remembered.

In Re A, the Court set out a number of factors which it determined are likely to influence the decision of whether to proceed remotely:

i.       The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

ii.     Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

iii.    Whether the parties are legally represented;

iv.     The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;

v.     Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

vi.    The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;

vii.   The scope and scale of the proposed hearing. How long is the hearing expected to last?

viii.  The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium that using video;

ix.    The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

x.     Any safe (in terms of potential Covid-19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.

Equal access to justice

The President of the Family Division commissioned the Nuffield Family Justice Observatory (NFJO) to undertake a consultation on the use of remote hearings in the family court. The results of the consultation were published on 5^th May 2020. The NFJO found that the positive and negative responses were evenly balanced but the report also highlighted significant issues with the use of remote hearings in family cases. The report states that many lawyers and judges have found it “extremely difficult to conduct hearings with the level of empathy and humanity” that is integral to the family justice system and that it is “difficult, if not impossible, to ensure that parties to proceedings receive the level of support before, during and after hearings that they would normally get if they are legally represented”.

A key difficulty for the Remote Access Family Court has been ensuring equal access to justice. In public law children cases, many parents do not have the technology required to participate in remote hearings; they lack sufficient phone credit, access to WiFi or data allowance on their phones to participate in telephone hearings or those on video conferencing software. These difficulties exacerbate the effect of vulnerabilities and inequalities based on income, race, disability and mental capacity. Litigants-in-person, in particular, are even less able to access justice.

Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, a telephone hearing involving the interim removal of children, was the second appeal in a case relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the Covid-19 pandemic. The Court of Appeal found that the court was wrong to go ahead in highly pressurised circumstances.

The case highlighted the following:

• The effective use of communication technology is indispensable to the ability of the Family Court to deliver justice.
• A remote hearing can replicate some but not all of the characteristics of a fully attended hearing.
• Provided good practice is followed, it will be a fair hearing, but we must be alert to ensure that the dynamics and demands of the remote process do not impinge upon the fundamental principles.
• Remote hearings place additional and in some cases considerable burdens on the participants.
• The court must seek to ensure that it does not become overloaded and must make a hard-headed distinction between those decisions that must be prioritised and those that must unfortunately wait until proper time is available.

The road ahead

On 9^th June 2020, the President issued new guidance entitled ‘The Road Ahead’. The guidance notes that it may be the end of 2020 or even Spring 2021 before anything approaching a return to ‘normal’ court working conditions will be achieved. In the first few weeks of the Covid crisis, the most contested fact-finding or final welfare hearings were largely adjourned. Judges must now re-evaluate potential unfairness, which previously justified decisions to adjourn cases for what was thought to be short periods of time, in light of the longer timescale. Final hearings may now need to be fixed for remote or hybrid determination and in those cases, steps need to be taken to reduce the potential for unfairness. At paragraph 49 of ‘The Road Ahead’, the President sets out steps that can be taken to optimise the fairness of remote hearings.

The importance of achieving finality for children and families, the detrimental effect of delay and the impact of the growing backlog of cases must influence judicial decision-making as should the need to ensure fairness to all parties.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.