Will Family Court hearings ever be the same again? 

March 27, 2020

While it may be a daunting prospect to ensure family justice during a global pandemic, directions hearings in private children and domestic abuse cases seem well-suited to being heard remotely.

For court users and judges, everything is changing.

The delivery of justice may now be dependent on the extent to which barristers and solicitors can understand the breakout room function on Zoom Pro. Creating a ‘Covid-19’ email and desktop folder containing the latest court and practitioner guidance on remote hearings is now a must. Things will likely never be the same, and the speed of change of the emerging landscape can be unsettling.

But, among this, there is room for some cautious optimism. For one thing, positive developments in case management are already becoming apparent.

As a junior barrister undertaking directions hearings in private law Children Act 1989 [private law] and domestic abuse [Part IV Family Law Act 1996] proceedings, it seems to me that remote hearings may have found a natural home here, and the Family Court’s overriding objective of dealing with cases justly may be better served through this method.

The advantages of directions hearings as remote hearings

In private law and Part IV FLA 1996 proceedings, the relationship between the parties can be bitter, fractious, and abusive. So it can be a huge relief for a party to find out they do not have to come face-to-face with the other party in a courtroom (or within the same building where special measures to avoid direct contact at court are arranged).

In directions hearings where evidence does not need to be given, phone hearings seem a proportionate and fair way of dealing with proceedings that generally take an emotional toll on the parties.

Remote hearings, particularly telephone hearings, also do away with the need to arrange cumbersome ‘special measures’, which can take up precious judicial and court clerk time (ask anyone who has ever tried to help a beleaguered court clerk or judge set up a screen), while providing even greater protection for vulnerable parties.

Moreover, in a busy world post-LASPO, where legal aid practitioners take on high volumes of work to be commercially viable, remote directions hearings save lawyers time that would otherwise have been spent travelling to courts up and down the country.

They can now use this time to focus on multiple cases, at different courts, at different times on the same day. This may improve the efficiency of case management generally, freeing up judicial and lawyer resources for dealing with trials, where in-person hearings remain the paradigm.

Additionally, remote directions hearings will likely help case turnover in the longer term, when the courts and HMCTS struggle to clear the inevitable backlog and havoc Covid-19 has wrought.

As well as time and energy savings, there will also be financial savings if lawyers and litigants do not have to travel physically to the court. This saving may be incredibly helpful for parties who are on low incomes and/or income support.

Challenges

Of course, challenges remain. It is still unclear how lawyers are to communicate with their clients during a remote hearing, to check their instructions or that they are happy to conclude the hearing.

Until a uniform platform is used by the judiciary, which includes breakout rooms for lawyers and clients, there are questions about how this can happen at every hearing. Coupled with this, there are issues of whether effective engagement for lay clients during a hearing is fully possible. Obviously, once the courts provide guidance on communicating with clients during remote hearings, these hurdles will decrease.

Equally, not all directions hearings will be suited to being heard remotely. It is easier to impose the seriousness of the courtroom on an unruly party in a physical courtroom itself. Telephone hearings can involve the parties deliberately speaking over each other, and over the judge, without repercussion, or effective means of maintaining control.

It may be that this behaviour falls under the Family Court’s contempt of court powers (eg wilfully interrupting the proceedings of the family court or otherwise misbehaving in court). So the person behaving inappropriately can be warned accordingly to improve their behaviour. Or it may simply be better to have certain directions hearings in person.

Remote hearings also necessarily depend on technology, and on the parties and lawyers having access to technology. While many people will be able to gain access to a phone or the internet for a telephone or Skype hearing, some, indeed many, will not.

The state’s requirement to provide effective access to justice under Article 6 of the European Convention of Human Rights (amongst other obligations) means that the court system must cater for this scenario.

Perhaps ‘access hotspots’ can be set up from which someone can phone in from? Care must be taken to ensure that the privacy of the proceedings is strictly maintained, both through the security of the communications platform used, and through the layout of the physical location itself.

Any lay party must also be made aware that they are participating in formal court proceedings, and of any consequences of misbehaviour. Equally, in the current circumstances, social distancing rules would have to be complied with, and rigorous hygiene standards adhered to. Nonetheless, to afford access to justice, some measure like this may be required.

Looking forward

Evidently, for the short to middle-term future, many more hearings will need to take place remotely. However, hopefully remote directions hearings in private children and domestic abuse cases are here to stay (unless the interests of justice in a case demand otherwise). The cost and time savings for litigants and their lawyers, the minimising of inter-personal conflict, and the likely speedier resolution of procedural issues make these types of cases ideal for remote hearings.