Remote hearings in the Family Courts to remain after the pandemic?

A report investigating the feasibility of post-pandemic remote hearings in the family courts has been published by Nuffield Family Justice Observatory. Commissioned by the President of the Family Division in anticipation of the easing of social distancing restrictions, the report sets out the findings of a consultation that will inform the post-pandemic recovery plans of the Family Court and the Court of Protection.

Over 3,200 professionals, parents and other family members from across England and Wales responded to the consultation about which aspects of remote hearings could continue as the family court enters its “recovery” phase following the COVID-19 pandemic.

Amongst the key findings of the consultation, are that the majority of professional respondents see a continuing role for certain types of remote hearing, although many felt that decisions should be made on a case-by-case basis. In addition, many barristers, solicitors, local authority lawyers, social workers, Cafcass and Cafcass Cymru advisers and guardians highlighted the positive impact of remote hearings on their time and working patterns.

Overall, there was support for remote “administrative” hearings such as case management hearings, first hearing dispute resolution appointments and also for initial and/or 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.

Technology was found to be problematic with the majority of professionals (63%) stating that more needed to be done to ensure that remote hearings were fair and worked smoothly. The majority of parents (73%) also indicated that they did not feel supported during hearings due to not being able to be with their legal representative during the hearing, and difficulties communicating with them as a result.

Many responses also referred to the general delays facing the family court system and mentioned causes like technological problems, adjournments because an in-person hearing was required, problems of communication between parties and their legal representatives, and reduced opportunities to assess children and families, all of which were due solely to the COVID-19 pandemic. But other factors pre-dating the pandemic were also referenced including resource and capacity pressures in local authorities, limited judicial and court capacity, delayed expert assessments and family members coming forward late in proceedings.

Although examples of good practice in the running of remote hearings are highlighted throughout the report, specific suggestions and recommendations have also been made regarding improvements to the better management of remote hearings. These include making sure lay parties and their representatives are better prepared for hearings, checking access to technology before the start of the hearing, providing better written guidance to parents and professionals and generally improving the overall technology used.

The report can be accessed in full here.