More needs to be done to ensure remote hearings are fair and work smoothly, say family professionals

Nearly two thirds of professionals responding to the latest Nuffield Family Justice Observatory (NFJO) rapid consultation feel that more needs to be done to ensure that remote hearings are fair and work smoothly.

A significant majority of parents (83%) meanwhile indicated that they had concerns with how their case had been dealt with, while nearly three quarters (73%) suggested that they did not feel supported during their hearing(s).

“For many parents this was because they did not have legal representation or other support: just under half (46%) did not have legal representation. Others raised concerns about not being able to be with their legal representative during the hearing and the difficulties communicating with them as a result,” the report said. Some parents indicated that they were not given a choice about how the hearing was conducted.

Concerns raised included the difficulties experienced by lay parties accessing technology to fully participate in hearings, the lack of legal and other support for parties before and during the hearing, concerns about privacy and confidentiality, and concerns about the particular communication needs of some parents not being met.

“There were also concerns about the way remote hearings were being run, with hearings being arranged at short notice, insufficient information provided in advance, hearings being rushed and court papers not being available. Both professionals and lay parties raised concerns about the impact of remote hearings on maintaining the authority of the court.”

As in previous research, the NFJO consultation found overall support for remote ‘administrative’ hearings (subject to caveats) such as case management hearings, first hearing dispute resolution appointments and also for initial and/or ex parte applications for non-molestation/occupation orders.

There was much less support for remote fact-finding hearings, hearings involving contested applications for interim care or contact orders, or final hearings.

The report found that 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.

Other findings from the report included:

• Many hearings are still being conducted by phone, despite a majority of respondents expressing a preference for video hearings.
• The technology to support remote hearings had improved. There were, however, mixed experiences of Cloud Video Platform. Concerns about video technology normally related to the quality of connection and access to appropriate hardware. The vast majority of parents received no help in accessing the technology to take part in the hearing.
• Around half of parents and professionals who had attended a hearing in court felt that all the necessary safeguards were in place to ensure COVID-19 safety. Some felt that the restrictions were too strict and could be relaxed further, while others felt there were insufficient safeguards in place. A common concern was limited ventilation in court rooms.
• Suggestions about how remote hearings could be better run, including making sure lay parties and their representatives were better prepared for the hearing, checking access to technology/links before the start of the hearing, providing better written guidance to parents and professionals and improving the technology.
• While many professionals suggested there should be more places where parents could go to be with their legal representative or other support to attend the hearing remotely, only 4 of the 174 parents who responded to the consultation indicated that they had been provided somewhere to attend the hearing.

More than 3,200 professionals (lawyers, magistrates, judges, social workers and others in the family justice system), parents and other family members from across England and Wales took part in the rapid consultation, the findings of which will be used to inform post-pandemic recovery planning by the President of the Family Division.

Lisa Harker, director of Nuffield Family Justice Observatory, said: “There is a clear disconnect between the measures professionals can see would help remote hearings run more smoothly – particularly for parents and family members – and what is still happening in some family courts.

“Many of the suggestions for improvements are neither complicated nor new, so it is vital to understand why they are not being put into practice. Families must feel that they have had fair access to justice in what are some of the most life-changing cases heard in courts – and that must apply to remote hearings too.”