63% of professionals say more needs to be done to ensure remote hearings are fair

The President of the Family division has commissioned a survey about how the courts can use remote hearings on a more permanent basis going forward. Since the COVID-19 pandemic, all hearings have been heard remotely, but now that social distancing measures have been relaxed, the Family division is keen to establish if remote hearings are a viable alternative to in-person hearings. 

The consultation, conducted by Nuffield Family Justice Observatory, collected feedback from 3,219 total respondents which included parents, family members and lay parties, as well as  professionals in the family justice system such as judges, magistrates, barristers, solicitors, local authority lawyers, Cafcass and Cafcass Cymru advisers and guardians, court staff, social workers and advocates. The survey is the third in a series of consultations commissioned to inform the post-pandemic recovery plans of the family court and the Court of Protection.

Findings in the report show that the majority of professional respondents saw a continuing role for certain types of remote hearing, although many felt that the decision should be made on a case-by-case basis.

There was general support for remote “administrative” hearings such as case management hearings, first hearing dispute resolution appointments and also for initial and ex parte applications for non-molestation/occupation orders. But there was much less support for remote fact-finding hearings, hearings involving contested applications for interim care or contact orders, or final hearings.

Respondents identified the main factors affecting whether a hearing should be made remotely as, the vulnerability of lay parties and their wishes and views, the complexity of the case, and whether there was access to suitable technology for all those taking part. Some also flagged the challenges of managing remote hearings where interpreters were required and those involving litigants in person.

Despite some concerns, professional respondents praised the many benefits of remote hearings such as improved work-life balance and wellbeing:

“I find my well-being is much better conducting remote hearings. I do not have the stress of travelling and I feel much better in myself. I also find I have more evenings and weekends to myself as I am able to manage my time better. It is particular beneficial to women who have families and are now much more able to work around childcare commitments and know they will be finishing on time without additional travel and uncertainty about when they are getting home. There is no disadvantage of such hearings to clients in my opinion, in which any disputed issues are submissions based and perfectly able to be dealt with well by counsel on screen”

said one Barrister.

For lay parties, many professionals reported that they found remote hearings less intimidating and often preferred them because they didn’t have the anxieties and challenges of seeing other parties, and also weren’t put off with the time and expense of travelling to court.

The same Barrister continued:

“I strongly consider that such hearings should continue remotely. Many of my clients have actually said they prefer remote hearings and they are less stressful because they are in their own home. I have noticed that hearings run far more efficiently remotely and it is very rare that we do not start cases on time. It also enables advocates to do more than one hearing per day where appropriate, which means the benefit of continuity for clients where it might not otherwise have been possible.”

Experts also felt that remote hearings helped in cases of abuse or domestic abuse, with one Circuit Judge commenting that, “it is particularly useful where there are allegations of abuse, because the parties are not in the same room at the same time”.

The report findings weren’t all positive however. Judges and magistrates were more likely to express reservations about remote hearings than any other professional group. Reasons included the importance and gravity of the decisions being made and many felt it unfair for parents to hear decisions about their children being removed or changes to contact arrangements via phone or video.

Other concerns such as the loss of human interaction, and equal access to and proficiency in technology were also flagged as disadvantages to remote hearings. One Barrister commented, “many care clients do not have WiFi. I have had to watch a woman sit in the front of her car with her partner who hit their baby sharing a mobile phone as that was the only way of joining the hearing”.

Privacy concerns were also flagged, for example when children were in the room or home with parents, parties attending hearings from public spaces or with other people nearby. Judges and magistrates commented that it was hard to “manage” who was in the room and what influence they might be having.

Finally, the survey asked respondents how they would make hearings work and run smoothly, presumably to inform best practice for future policy.

Here respondents stressed the need for flexibility and again referenced that making decisions on a case-by-case basis would be required. Many felt that a triaging system would be helpful to support these decisions, and that parents should be given choice on whether the hearing should be held remotely.

Overall, the majority of professionals (63%) felt that more needed to be done to ensure that remote hearings were fair and worked smoothly and a majority of parents (83%) indicated that they had concerns about how their case was dealt with in a remote setting.

The full report can be accessed here.