Parents, other family members and organisations supporting parents have reported concerns about remote hearings in the family justice system.

While most professionals who responded to the survey carried out by the Nuffield Family Justice Observatory felt that things were working more smoothly than in April when Nuffield carried out a previous survey, parents, other family members and organisations supporting parents were less positive about remote hearings.

“The majority of parents and family members had concerns about the way their case had been dealt with and just under half said they had not understood what had happened during the hearing,” said the report by Nuffield FJO.

Following the outbreak of the COVID-19 pandemic and the introduction of social distancing measures, face-to-face hearings in the family courts in England and Wales came to an abrupt halt and were replaced by telephone and video hearings.
In light of this, the President of the Family Division asked Nuffield FJO to undertake a rapid consultation on the use of remote hearings in the family court in April 2020. The subsequent report painted a picture of practice at that time, highlighting the opportunities and challenges arising from working under such new conditions.

Between 10 and 30 September 2020, over 1,300 parents, other family members, and professionals in the family justice system across England and Wales responded to the follow-up survey on remote and hybrid hearings in the family court, introduced in response to COVID-19.

Difficulties with communication

Most professionals who responded to the survey felt that fairness and justice had been achieved in the cases they were involved with most or all of the time.
However, the responses from professionals revealed that they also had concerns about whether proceedings were perceived as fair by parties in all cases.
Professionals also shared concerns about the difficulties of being sufficiently empathetic, supportive, and attuned to lay parties when conducting hearings remotely.

Common problems that were highlighted included:

• Parents taking part in hearings remotely alone, and from their homes
• A lack of communication between lay parties and their legal representatives before hearings
• Difficulties with communication during hearings because of the need to use more than one device or to adjourn the hearing.
• Particular difficulties are experienced by parents who require an interpreter or who have a disability
• The halt in face-to-face contact between infants and parents in cases involving interim care proceedings was highlighted as a concern
• The lack of support to new mothers involved in interim care order applications was also highlighted as problematic.

There was widespread concern for litigants in person in private law matters. Many examples were given of support being provided by judges, magistrates, and legal advisers. There was recognition of the challenge for McKenzie Friends in remote hearings and the limitations on other support that could be provided from organisations like Support Through Court.

Many respondents to the follow-up survey also raised concerns about the impact that working remotely was having on the formality and authority of the court, although this had not been identified in the earlier consultation.
In terms of technology, the survey found:

• Telephone hearings continue to be widely used and some parents have to join video hearings by telephone (i.e. through an audio link only).
• Telephone hearings are being used for final and contested hearings as well as for administrative and direction hearings.
• A wide variety of different videoconferencing platforms continue to be used alongside telephone link platforms.
• It is not always clear why a particular type of technology is being used, although the type of case, the availability of technology and court resources, and the preference and technological capability of the judge appear to be the most common determinants.
• There continue to be many technical problems encountered in most forms of remote hearing.
• Most problems related to connectivity and common issues identified included difficulty in hearing people, difficulty seeing people, and difficulty identifying who is speaking.
• More than half of professionals had taken part in a hybrid hearing where some people were attending in person and some via a telephone or video link.
• Although hybrid hearings were felt to be important - as they could enable parties to attend hearings with their representatives and therefore fully participate in hearings - many professionals reported technological difficulties of running hybrid hearings.

“There are wide variations in practice in terms of how hearings are organised. Some are working well. Where problems occur, they include a lack of advance notice, sudden cancellations, and a lack of clarity about which format will be used for the hearing,” said the report.

Lack of staff

Lay parties continue to have difficulty accessing hearings because they lack the hardware, connectivity or skills to navigate the software. While e-bundles are working well in some areas, concerns were expressed by some respondents about lay parties not having access to e-bundles, bundles and relevant documentation not reaching the judge or the bench in time for the hearing, and a lack of clarity about how best to communicate with courts and judges in relation to documentation.

Professionals in the survey reported that a lack of sufficient court staff is hampering the smooth running of hearings, leading to inefficiencies in the way that hearings are managed and in the use of judicial time. There is a particular shortage of staff sufficiently trained in set up and use of the different types of technology.

“It is clear that many professionals are working extremely hard to make the system work well. Plenty of examples of good practice and suggestions for improvements in practice were provided by respondents. There is a willingness to continue to improve the experience of all those involved. There are also some elements of the system that are clearly under particular strain,” the report concluded.

Areas of concern

The President of the Family Division, Sir Andrew McFarlane said: “This emergency is without precedent. Judges and others have worked tirelessly, and continue to do so, so that the Family Court has continued to function without a break since the start of ‘lockdown’ in March. We have adjusted, developed and adapted our methods of working as the crisis has persisted. Much of the work of the Family Court cannot be left to wait as many cases, involving the welfare of children as well as adults, are urgent. Because of the need for social distancing most cases are currently heard remotely (either wholly or in part). The report highlights that everyone is doing their best in the circumstances.

“This important piece of independent research, which holds a mirror up to the system, is a most valuable reflection after six months of remote working. Encouragingly, most professionals, including judges, barristers, solicitors, Cafcass workers, court staff and social workers, felt that, overall, the courts were now working more effectively and that there were even some benefits for all to working remotely.

“However, the report highlights a number of areas of concern that need to be addressed. There are clearly circumstances where more support is required to enable parents and young people to take part in remote hearings effectively. It is worrying that some parents report that they have not fully understood, or felt a part of, the remote court process. Whilst technology is improving, there is clearly still work to be done to improve the provision of Family Justice via remote means. I am very alert to the concerns raised in this report, and I will be working with the judiciary and the professions to develop solutions,” he concluded.

Remote hearings in the family justice system: reflections and experiences