Payne Hicks Beach

Payne Hicks Beach

14 December 2021

Are remote hearings here to stay?

The evolution of remote hearings

At the beginning of 2020 most applications in the family court were made on paper and filed by hand or by post.  Virtually all hearings took place within a court building with a very few heard over the telephone, usually where the circumstances were urgent and the hearing took place out of hours.  The Covid-19 pandemic hit family justice hard but the system was able to adapt quickly and the administration of justice has been able to continue.  On 27 March 2020 Mr Justice MacDonald produced "The Remote Access Family Court" setting out how family cases would be heard during the pandemic.  Following that initial guidance there have followed a number of directives aimed at making remote hearings work as effectively as possible. 

As we look at the back of 2021 virtually all petitions and applications in the family court are made via the government's electronic portal and over the pandemic remote hearings have become the default position.  Practitioners are now familiar with conducting hearings via an online medium such as Zoom, Teams or the Court's own platform, CVP.  Will this continue or will there be a gradual return to hearings habitually taking place in a physical courtroom?

What are the benefits and negatives of remote hearings?

The Pros

Efficiency and time saving are the principal benefits of hearings taking place remotely.  Previously, lawyers and parties would have to travel to court.  The court would habitually list multiple hearings for 10.30 with parties then waiting at Court for their turn to go before the judge.  Often this could mean waiting at court for several hours before actually appearing in front of a judge.  Lists were often derailed by urgent applications being shoe horned in at the start of the day.  With the introduction of remote hearings, you are provided with a set time for your hearing to take place which, in turn, ensures all parties are ready for the time of the hearing.

Remote hearings mean much less wasted time and, consequently, less wasted costs.  Lawyers can get on with other work whilst waiting for their court time slot saving money for clients who would otherwise have been billed for the time their lawyer spent travelling to and waiting at court. 

Technology means that parties can attend a hearing from the comfort of their own home or from their solicitors' office which may be less stressful than attending court, particularly where the proceedings are acrimonious, where there are allegations of intimidation or domestic violence or where one or more party has a distance to travel to Court. 

The Court system is underfunded and lacks resources.  By making the remote process more streamlined and efficient it ensures the in person facilities and resources are available for those who really need them.

The Cons

Family court hearings are often emotive.  Dealing with those emotions is not always easy over a remote platform.  Judges frequently rely on a witness's body language and rapport to determine whether the evidence being given is credible.  It is much more difficult to assess this over a screen.  It is usual now for a client to be with their lawyers even when giving remote evidence but during the pandemic when the restrictions prevented a client from even being in the same room as their lawyers client's often felt adrift and unsupported.

Research carried out by the Nuffield Family Justice Observatory found that almost half of parents involved in hearings held remotely had not understood what had taken place during the hearing.  This is shocking given that many of the proceedings in the family court have a substantial impact on the lives of those concerned.

Remote hearings have less gravitas than being in a courtroom before a judge elevated at the front of the room.  Parents involved in cases where decisions were being made to remove their children felt the remote platform felt too informal and lacked the importance that should be given to a hearing making such a momentous decision that would fundamentally affect their family lives.

We often assume that everyone in the modern age is tech savvy and has access to suitable equipment but this isn't always the case.  Remote hearings can only be effective if the parties have suitable technology and a sufficiently strong Wi-Fi connection.  Justice cannot be done if the individuals concerned are unable to participate fully because of issues with technology.

A case in America also highlighted the very real risks that may arise when using a remote platform.  In Michigan during a remote assault hearing a prosecutor noted that the female complainant appeared nervous and was looking off to one side of the camera.  The prosecutor alerted the judge - and the police - to the fact that she believed the defendant (who was under a restraining order not to be near the complainant) was in the same apartment.  It transpired that the prosecutor was correct and the complainant was giving her evidence within hearing of her abuser and was consequently intimidated.

So are remote hearings here to stay?

In part.  It seems likely that the courts will continue to utilise the remote platform for more administrative hearings like First Appointments and Pre-Trial Reviews following the outcome of the Farquhar Committee's report on remote hearings in financial remedy hearings.  However, final hearings in both children and financial remedy hearings and fact finding hearings will, where possible be heard in person.  Hearings that involve court based mediation/ negotiation will also take place in person.  Where significant issues are being made that affect families lives they should ordinarily be ventilated in a court room so that parties feel that they have had the opportunity to present their case to the best of their ability.

Article by Kelly Gerrard, Legal Director in the Family Department. For further information, please contact Kelly by email or your usual contact in the Family Department, or alternatively telephone on 020 7465 4300

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

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