Research finds wide variation in family cases going ahead via remote hearings or being adjourned

Respondents to a rapid consultation on remote hearings in the family court commissioned by the President of the Family Division have reported wide variation in the kind of cases that are currently going ahead or being adjourned and in the level of support available for parties, the Nuffield Family Justice Observatory has said.

The report, Remote hearings in the family justice system: a rapid consultation, said this suggested that some national guidance would be valuable.

More than 1,000 parents, carers and professionals in the family justice system across England and Wales responded to the consultation, which was undertaken from 14 to 28 April 2020.

The report also found that:

• The respondents were evenly balanced in terms of their overall positive and negative reactions to remote hearings. “Most thought that remote hearings were justified for certain cases in the current circumstances; and some felt that this way of working could continue for certain cases in the future.”
• Significant concerns were raised about the fairness of remote hearings in certain cases and circumstances, “and there were some worrying descriptions of the way some cases had been conducted to date”. The Observatory said these concerns 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, the difficulty of ensuring a party’s full participation in a remote hearing, and issues of confidentiality and privacy. Specific concerns were commonly raised in relation to specific groups: such as parties in cases involving domestic abuse, parties with a disability or cognitive impairment or where an intermediary or interpreter was required.
• A wide range of different telephone and video platforms were currently being used to conduct remote hearings. Telephone hearings were more common, but video hearings were generally felt to be more effective.
• Concerns were raised about access to appropriate technology (for parties and professionals), the lack of clarity about roles and responsibilities in terms of setting up and supporting the administration of hearings, the extent of professionals’ technological capabilities, and the limited IT support and training.
• Remote working was reported to be having a negative impact on professionals’ health and well-being, although for some professionals it had meant working in a more efficient way.
• Many examples of emerging good practice, and suggestions for future practice, were provided. “These largely related to the management of the process—the preparation and running of hearings, and making the most effective use of technology.” Respondents to the consultation also gave feedback as to the types of cases that they felt should or should not be heard using telephone and video technology.
• Further work was required to ensure that the impact of remote hearings during the pandemic could be researched effectively in order to inform future practice.

The President of the Family Division, Sir Andrew McFarlane, welcomed the research, saying it highlighted “the extraordinary work of Family Judges and the wider Family Justice community in these challenging times”.

Sir Andrew said: "It is now even more clear that we are, as I have frequently said, engaged in a marathon and not a sprint; indeed, more than a marathon, it is a long-distance run for which there is currently no end in sight. It is therefore important to pace ourselves and to take stock of how things are going.”

He added: “The process of research has held a mirror up to what we are currently doing. I hope that its publication will stimulate informed discussion and debate. The process of reading the document, and seeing what is said there, may well act as a corrective for future hearings – either by identifying occasions when a remote hearing may have been less than satisfactory, or by flagging up suggestions for improvement – in a more subtle and effective manner than any formal guidance might achieve.”

The Family President said it was his intention to use the period of the next 10 days or so, following publication of the report, to discuss widely with judges, the profession and others whether there was a need for any further national ‘guidance’ on remote hearings in the Family Court at this time.

“I understand that some believe that further guidance will be issued. I need to manage expectations by saying that I will only issue further formal guidance if I am satisfied that there is a need to do so,” he said.

The Family President added: “I have, in a manner that might impress the cast of the Cirque du Soleil, bent over backwards to stress that the decision whether or not to proceed with a remote hearing is a matter for the individual judge concerned, and should not be the subject of blunt ‘do or do not’ national guidance based upon the length of hearing, the issue before the court, whether there is to be oral evidence or some other characteristic.

“The downside of that approach is, I accept, that there may be a lack of consistency from case to case, judge to judge and maybe court centre to court centre. Consistency would, however, come at a price as it could only be achieved by reducing the number of remote hearings to a low common denominator, as the alternative of saying that all hearings in a particular category must be heard remotely is not tenable.

“Imposing consistency could only be achieved by deploying a very blunt instrument, which would not take account of any variations from case to case or court to court. It would also not be agile, in comparison with individually exercised judicial discretion, to adapt to changing circumstances as we move gradually out of total lockdown and/or some courtrooms become available for safe working (as is already the case the three London Family Courts and elsewhere).”

The Family President said it had therefore been his firm resolve to respect and to trust the judgment of the individual judge who is to conduct a hearing to determine whether and how it should be heard and to keep that decision under review at all times.

“It follows that, unless I am persuaded that this approach is flawed, the result of the process of consideration and discussion of the Nuffield FJO Report over the next week or so is likely to be limited to highlighting lessons to be learned, or offering advice, rather than the issuing of any guidance which radically departs from the present approach,” he said.

Lisa Harker, director of the Nuffield Family Justice Observatory, said: “The immense response we had to our consultation highlights just how many people – from families to judges to social workers – are already having to rapidly adapt to a model of remote hearings. We have heard about the very real challenges they pose to fairness in certain cases, but also the positive opportunities to inform future practice throughout and beyond the pandemic.

“The pandemic has turned the system’s traditional way of working on its head, but it is vital that solutions are sought to protect justice for children and families.”