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Remote hearings in the family justice system: follow-up consultation report

The Nuffield Family Justice Observatory (NFJO) has published a follow-up consultation report entitled Remote hearings in the family justice system: reflections and experiences.

Following the outbreak of the COVID-19 pandemic, and the introduction of social distancing measures, the family courts in England and Wales rapidly adapted to using telephone and video hearings. In light of this significant change, the President of the Family Division asked the NFJO to undertake a rapid consultation on the use of remote hearings in the family court. The consultation ran for a two-week period in April 2020 and more than 1,000 people responded.

The current report provides an overview of the findings of a follow up consultation process undertaken between 10 and 30 September 2020. 1,306 respondents completed a survey, several organisations submitted additional information, and focus groups and interviews were undertaken with parents.

The President of the Family Division, Sir Andrew McFarlane said in response to the report:

"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."

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, professionals also have concerns about whether proceedings are 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 highlighted include: parents taking part in hearings remotely alone, and from their homes; a lack of communication between lay parties and their legal representatives before hearings; and 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. There has also been widespread concern for litigants in person in private law matters.

Respondents have also expressed concern about the impact on the authority of the court. 

There continue to be many technical problems encountered in most forms of remote hearing. Most problems relate to connectivity and common issues identified included difficulty in hearing people, difficulty seeing people, and difficulty identifying who is speaking.

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.

For the report, click here.