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Business as Usual? The Impact of COVID-19 on Access to Family Justice in England and Wales

John Jupp, Solicitor, and Lecturer in Law at the University of Sussex, examines the impact of the pandemic on the family justice system and the nature and extent of the challenges faced by family law professionals and court users.

 

John Jupp, Lecturer in Law, University of Sussex, and Solicitor


Introduction

On 19 March 2020, the same day that the Prime Minister announced the introduction of social distancing measures in an effort to contain the spread of COVID-19, the President of the Family Division, Sir Andrew McFarlane, issued instructions that all family hearings should take place remotely, unless fairness and justice required that a court-based hearing should be conducted. According to the President, the transition to remote access processes would enable the family justice system to 'keep business going safely' and ensure continued access to family justice.

Complimenting these instructions, a report released by Mr. Justice MacDonald on 23 March confidently reassured the judiciary that remote access systems should render it possible 'to continue substantially the full operation of the family justice system'. Since then, remote access processes have facilitated continued access to family justice. In the two weeks between 23 March and 6 April audio hearings had increased by more than 500 per cent and video hearings by 340 per cent. Moreover, by 28 April 94 per cent of 932 respondents to a consultation undertaken by Nuffield Family Justice Observatory ('the Nuffield report'), which included solicitors, barristers, judges and magistrates, had taken part in a remote hearing. This is testimony to the exceptional effort that has been made by the judiciary and family practitioners to facilitate continued access to justice in the family courts. However, the impact of the pandemic on the family justice system and the nature and extent of the challenges that family law professionals and court users have been facing in order to keep business going remain unclear. This article examines these issues, relying on data from recent consultation reports and interviews with experienced barristers and solicitors conducted between 22 April and 5 June 2020. It finds that the transition to remote processes caused as a result of COVID-19 has had a hugely damaging impact, resulting in court closures, delays to proceedings, disruption to business and inconsistent application of new guidance on remote processes.  These outcomes are discussed below.


Delays to proceedings

COVID-19 has exacerbated the pre-existing pressure on the family justice system and is responsible for causing substantial delays to proceedings. This can partly be explained by the demands of operating remote hearings. The senior judiciary recognised that the necessity for postponing hearings as result of the transition to remote access processes would be 'inevitable.' By 9 April only about 40 per cent of all hearings had taken place. It is also the result of a reduced availability of judges. Magistrates stopped sitting in Family Proceedings Courts following the lockdown, increasing the flow of cases referred to district and circuit judges, consequentially reducing their availability to conduct hearings. In order to manage their lists judges were forced in the early weeks of the COVID-19 crisis to reduce the time allocated for hearings listed before the lockdown, vacate scheduled hearings and list only the most urgent cases. Most contested fact-findings or final welfare hearings were adjourned.

Whether or not there are delays to proceedings depends largely on the type of case that is being considered. Public law Children Act cases are trumping private law proceedings as they generally involve more urgent concerns of significant harm to children. Private law Children Act hearings are more likely to be adjourned unless all the necessary evidence had been filed prior to the lockdown or they are considered to be absolutely necessary, taking into consideration the welfare of the child. Those cases which require further expert evidence or await CAFCASS reports following periods of contact are more likely to experience further delays.

One of the additional consequences of reducing social contact is that it has resulted in the closure of contact centres. This has had a huge effect on the progression of cases timetabled for review following periods of supervised contact. Agreements that were previously made for contact to proceed in this way by necessity cannot be honoured and so cases that entailed a review after a certain number of supervised contact sessions are inevitably being delayed. Moreover, the requirements for social isolation have rendered it much more difficult for social workers and experts to meet with and observe those whom they are directed to assess for the purpose of preparing reports and psychological or psychiatric assessments. As a result, judges face particularly difficult challenges administering justice in public law Children Act cases, determining whether it is appropriate for hearings to be conducted remotely, balanced against the delay principle (Children Act 1989, s 1(2)), the welfare of the child and the risk of significant harm.

They are also required to take into consideration the necessity of completing cases within 26 weeks (s. 32(1)). The over-stretched courts are managing unprecedented levels of public law applications, which have doubled in number since 2007. The average time for a disposal of care and supervision applications from October to December 2019 was 34 weeks, an increase of 2 weeks from the same quarter in 2018. However, the COVID-19 crisis has compounded the challenges that the courts were already facing in observing statutory timetables. According to an interviewed lawyer,

a lot of hearings are being adjourned if they are not regarded as urgent. There has been a significant delay in any decisions being made in public law cases.  We are supposed to have a schedule of 26 weeks to conclude a case but this has gone out of the window so access to justice in terms of delays is huge. Decisions relating to children's futures are being delayed.

Amid these concerns, the current delays to proceedings are likely to have far reaching implications for the administration of family justice, capable of extending beyond the current crisis. Increases in the number of adjourned hearings are resulting in an accumulation of cases yet to be resolved, clogging judges' lists and delaying access to justice not just for those families engaged in adjourned cases, but also for those who wish to refer their disputes to the court for resolution in the future. Any decision to adjourn a hearing now will therefore have resonance for access to family justice for some time to come after the current social distancing measures are relaxed and normal court hearings can resume.

A further unwelcome consequence of increased delays to family proceedings is that they have contributed to a significant loss of business in the legal services sector. Far from keeping business going, some family practitioners have struggled to keep any business going at all. Research conducted independently by the Law Society and the Bar Council warns that 71 per cent of High Street firms risk closure and more than 50 per cent of self-employed barristers may not be able to survive financially in the next six months. Furthermore, in reaction to the immediate crisis, a number of law firms, including the UK's top 60 and smaller High Street family practices, have been forced to furlough staff. These developments can have short and long term damaging consequences for family access to justice. In the short term, the furloughing of family solicitors has increased the workloads of those colleagues who remain at their firms. In some instances they are inheriting long-running family cases involving clients they have not met and timetables with which they are unfamiliar, leading to missed deadlines and an increased risk of negligent practice. In the longer term, any substantial reduction in the number of specialist family solicitors and barristers will inevitably have a negative impact on the ability of the public to access professional legal advice, assistance and representation on family-related issues in the future.


Remote hearings: technological complications and challenges to representation

The adoption of audio-visual technology for conducting hearings is not new to courtrooms in the United Kingdom. In the Family courts the adoption of technology has for some time offered a pragmatic solution to overcome difficulties presented in particular cases in adducing live evidence. In Re S (Relocation: Parental Responsibility) [2013] EWHC 1295 (Fam), for example, leave was granted for a witness based in Colombia to give evidence via Skype. Similarly, in Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam) the court was satisfied that the Nepalese parents of an 11-year old child had freely consented to her adoption to a British couple following the witnessing via Skype of their signing consent forms by the guardian and the child's solicitor.

At the time that social distancing measures were introduced the family justice system had been undergoing reform as part of the Ministry of Justice's £1billion modernisation programme, initiated in September 2016, which aims to employ digital technology to improve efficiency and expand access to justice (Ministry of Justice, 2016). As part of this programme, the Cloud Video Platform (CVP) had been integrated into some courts by HMCTS. However, as this was still unavailable in most courts by March 2020, HMCTS encouraged the judiciary to choose from a 'smorgasbord' of IT and communication technologies to conduct remote hearings, including Skype for Business, Zoom, BT MeetMe, Microsoft TEAMS, Lifesize and FaceTime (MacDonald, 2020).

Although this was an understandable solution to the challenge posed by the necessity of quickly implementing remote access processes, the 'smorgasbord' approach to technology selection is capable of undermining the administration of justice in the family courts. Firstly, selecting from a wide range of technology reduces the ability for capturing data from a centralised court system. Secondly, it increases the potential for technological problems interrupting proceedings. Lawyers, judges and court users are required to be proficient users of a range of IT platforms and to be competent trouble-shooters when problems arise, failing which hearings have to be aborted. Litigants and their representatives are occasionally unable to access the required technology, there is no clear guidance as to whether the court, the parents, the lawyers or the local authority is responsible for arranging access and there are regional variations in connectivity and the availability of necessary equipment. An interviewed barrister complained of 'struggling with dialling in and with confidentiality issues' in relation to a local court's chosen IT platform, highlighting security concerns over litigants recording hearings and allowing other people who are not party to the proceedings to listen, including children who are the subject of proceedings. Thirdly, it promotes inconsistent access to justice in the courts. Currently, according to one interviewee, all private law hearings are being conducted by telephone, as are public law proceedings before district judges, although video-conferencing is adopted for public law proceedings before circuit judges. The employment of a diverse range of IT-platforms, and of video conferencing for some hearings and telephone conferences for others, while understandable in view of the mixed technological capabilities of the courts and court users, results in contrasting experiences for litigants in terms of the manner in which their hearings are being conducted. Some litigants, therefore, are attending court at hybrid hearings, while other parties attend proceedings remotely; some attend by using IT platforms that enable access by video-conference; and some never see the judge, opposing parties or their representative at all if proceedings are conducted by telephone. As an interviewed expert notes: 'there are cases where barristers may be appointed to do hearings but they never actually meet the client and so the client does not meet either the solicitor or the barrister – or see them if they do not have video facilities on their phones/computers.'

More generally, the impersonal nature of remote access processes is undermining the public's trust in the justice system as well as their access to justice. The ability of parties and their representatives to state their case in court is a central component of access to justice. However, some litigants complain of feeling disadvantaged and disconnected from proceedings when hearings are held remotely. An interviewee finds 'parental participation in proceedings' to be the main challenge of remote hearings. Litigants are not having the access to the court that they think is necessary to make the points that they want to. According to another expert, 'clients hate it. They are confused by it, they can't have their say and they can't express themselves so they feel that they are not getting justice.' Lawyers are facing new challenges to effectively putting their client's case to the court and negotiating with other parties to proceedings. According to one, 'normally I can meet a client at court, discuss the case with them, see how they are feeling about the case, engage with solicitors conducting the case, gauge how the client is reacting to the evidence in the case and what the other side are saying, the directions and orders they are seeking. It is much more difficult now.' Furthermore, negotiating with opposing parties during remote hearings is less constructive than would normally be the case. In a similar manner to normal court hearings, remote hearings will be briefly adjourned to allow parties to negotiate on issues that have arisen in a case. However, according to another interviewee, 'it does require people on the phone being willing to negotiate. Matters are now being negotiated in a much more tapered way. You are lucky if you manage to have a quick chat with the other side. It is not like being at court. Negotiation just disappears and it means that a lot of issues are not raised so judges are being asked to make more decisions.' 

Additional concerns have been expressed recently over the impact of the transition to remote hearings on the well-being of professionals. The Nuffield report identified new points of stress that remote working had placed upon lawyers and the judiciary in the family courts, including additional workloads and increased levels of anxiety and tiredness. Remote hearings can be an arduous experience for all involved. One interviewee has found them to be 'generally more tiring than face-to-face hearings. Video hearings are probably the most tiring because you are staring at the screen for hours. I had a contested ICO hearing recently that lasted 6 hours with no break. Afterwards I was very tired. Another noted that 'telephone hearings can be very tiring. I had an all-day telephone hearing recently. It is exhausting because you are concentrating very hard to make sure that you have heard everything.' The fatiguing quality of remote hearings potentially increases the risk of mistakes being made at court, undermining trust in new remote means of administering justice.  Their exacting nature has already contributed to erroneous judicial decision-making. In the recent case of Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, reported on 30 April, the Court of Appeal court set aside an interim care order made by Recorder McCarthy QC at a telephone hearing on 3 April concerning a 9-year old boy who, as a result, had been removed from the care of his grandmother and placed in foster care. Finding the Recorder's decision to have been 'unquestionably wrong', Jackson LJ and Davies LJ observed that it had undoubtedly been influenced by the nature of the Recorder's workload, which had involved working continuously and mainly by means of telephone hearings for 10 1/2 hours by the time the hearing on 3 April was concluded (para [20]).

There are also serious concerns that remote access processes are having a profoundly negative impact on the manner in which vulnerable litigants are able to participate in hearings and access justice. In 2019 the Family Law Bar Association provided evidence to a Select Committee that parents with literacy, language, cognitive and psychological problems find participation in a digital hearing 'extremely difficult if not impossible'. The Committee concluded that the steps HMCTS had taken at that stage to address the needs of vulnerable users of digital justice services had been insufficient. These needs have now been accentuated by the transition to remote processes forced upon the family courts by COVID-19. According to an interviewee:

'I am often representing parents who are very vulnerable. They may have drug or alcohol addiction issues and they are not having an opportunity to meet their lawyers. Often they don't have the technology required, they have not met the lawyer representing them and they may not have video technology so they can't see who they are talking to and the lawyers representing them who they are giving intimate details to.'

The limited access to technology and poor digital skills of many vulnerable court users present worrying obstacles to the ability of the family courts to ensure fairness and equality of arms. While intermediaries can help to alleviate these problems, unfortunately some had yet to receive training on how to provide remote intermediary support when the lockdown was initiated. As a consequence there are not enough professional intermediaries available to assist with proceedings. This, in turn, is contributing to delays to proceedings.

The ability of vulnerable litigants to access family justice should not be undermined by an increase in the use of technology that has been necessitated by COVID-19. Bearing in mind the Justice Committee's finding of insufficient action taken by HMCTS to address the needs of vulnerable court users prior to the pandemic, there is an urgent requirement for it to commission research to examine their needs, the additional support they require and how it should be facilitated to ensure that they can fully participate in proceedings and access justice in the new remote age.  


Conclusion

It is approximately three months since social distancing measures were implemented in the family courts. There is little doubt that new technologies have facilitated access to family justice during these difficult months. Crucially, they have enabled the courts to continue to manage cases and conduct hearings. In the longer-term it is likely that the responses to the challenges that have been faced to date will yield positive benefits for the family justice system, expediting the integration of CVP, fast-tracking the development of practice guidance and protocols for remote access processes, and supporting their increased adoption, leading to greater efficiency in the administration of justice. In the shorter-term, the rapid changes that have had to be implemented as a result of COVID-19, and the transition to remote processes, have had profound consequences for the administration of and access to family justice. The changes have resulted in delays to proceedings and disruption to business and they have challenged the ability of litigants to participate in proceedings and advocates to take instructions from clients, negotiate on their behalf and represent them. In spite of the best efforts of all of those who contribute to the running of the family justice system it has not been possible to substantially continue its full operation. Nor has it been possible to meet the aim of the President of the Family Division and keep business going without reducing access to and the quality of family justice. It has certainly not been business as usual. What is necessary now, however, is independent research to carefully examine the impact of COVID-19 on access to family justice and to evaluate continuing technological, training and support needs for family practitioners, the judiciary and court users.

23/6/20