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Consultation on family courts launched but vulnerable clients miss out with remote hearings

The President of the Family Division has announced a further consultation on remote and hybrid hearings in the family court.

In April, the Nuffield Family Justice Observatory with the President of the Family Division carried out a rapid consultation on remote hearings in the family court and received feedback from over 1000 parents, carers and professionals.

Following the consultation, the subsequent report included many suggestions for good practice which was welcomed by the President of the Family Division and was widely seen to be helpful and informative.

While some physical hearings are taking place, social distancing will continue to apply. Many hearings continue to take place over video links or by phone and will do so for many more months to come. The system is still adjusting to these changes and challenges from the backlog of cases.

Sir Andrew McFarlane announced the commencement of a further consultation, which will run until 1 October 2020 and a report is expected in mid-October.

This consultation project will again be carried out by the Nuffield Family Justice Observatory, an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of the family justice system.

Cafcass is encouraging parents, carers and professionals to participate in the consultation and to share their views.

However, less than a fifth of vulnerable clients are properly served by remote hearings, a survey of solicitors has revealed, leading the Law Society to warn that coronavirus is having a disproportionate impact on people who rely heavily on the state.

A Society study found that just 16% of solicitors said their vulnerable clients were able to participate effectively in remote hearings, indicating an ‘unacceptable barrier to justice for this group for a range of legal issues’.

Solicitors reported that people with mental health issues, learning disabilities and language barriers are believed to be at a particular disadvantage, as well as litigants in person.

The Society also found that access to legal advice in institutionalised settings, such as prisons, immigration detention centres and mental health units, has deteriorated during the pandemic, with many left in limbo when visa processing, asylum applications and appeals were suspended.

The Law Society is urging the government to publish a framework of factors to be taken into consideration when deciding which hearings can proceed remotely, alongside an equality impact assessment. Hearings involving vulnerable parties should be considered for postponement, it said, particularly where an interpreter is required.

It also called for investment in courts and technology to improve access to legal advice for those in institutional settings and address the backlog of cases in family and criminal courts, and Court of Protection.

Simon Davis, president of the Law Society, said: “Emergency measures must be necessary, proportionate and any limitations on access to justice must be for as short a time as possible, balancing the need to contain the virus with ensuring that those who need legal advice or the protection of the court can obtain it.”

“We need more and better data, and further monitoring and evaluation of the measures that have been implemented. As we enter a second wave of this pandemic, it is essential that lessons are learned so responses to this ongoing crisis are improved.”

The link to the consultation is at: https://www.surveymonkey.com/r/HD8PT9T

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