What do Remote Hearings Mean for the Family Court?
After the publication of the rapid consultation on remote hearings in the family court we look at what the findings were and how it will affect family court hearings in the future
On April 14th the President of the Family Division, Sir Andrew McFarlane, announced the commencement of a 2 week rapid consultation on the use of remote hearings in the family justice system which were introduced in the light of the COVID-19 pandemic. This research was undertaken by the Nuffield Family Justice Observatory, an independent organisation, and gathered evidence from more than 1,000 parents, carers and professionals in the family justice system including judges, barristers, solicitors, Cafcass officers, court staff and social workers. The full report can be read here.
Overall the respondents were evenly balanced in terms of positive and negative reaction to remote hearings, also the report showed a wide variation in the kind of cases that are going ahead or being adjourned and in the level of support available for parties.
Concerns about the fairness and justice of remote hearings
The report highlighted the difficulties from a lack of face-to-face contact, ensuring a party’s full participation in a remote hearing, concerns about lack of preparation for hearings, about whether or not cases are adjourned and issues of confidentiality and privacy. Particular concerns were raised by some respondents about urgent applications in relation to newborn babies, with new mothers having to join hearings from hospital, this raised issues in terms of difficulties in connectivity and in ensuring privacy while the hearing was taking place. Also of concern were cases involving domestic abuse, where coercive control or other high-risk abuse is a factor, there is a risk that the court process itself may be used as a coercive control tactic and increase feelings of vulnerability.
My husband has a history of recording and circulating photos and audio of court proceedings and I am concerned he will record and circulate this hearing. He is a professional video editor and I am worried that he will edit the hearing to misrepresent what was said, and perhaps even show the proceedings to our children when they are older (Parent)
The presence of children, either with parents or with legal professionals, while hearings take place was also of great concern. Examples were given of children going in and out of rooms while hearings were taking place, and of parents being distressed at the end of hearings which was immediately evident to their children. A number of examples were given of cases where a mother had been taking part in a virtual hearing to decide whether her children, who were still with her at the time, should be removed from her care.
Parents often have children around them when they are at home. Those parents may or may not try to protect the children from hearing the content of the court hearing with or without success in doing so. The children are unlikely to be fully protected from proceedings and the emotional worry and upset in the immediacy before the hearing starts and immediately post-hearing. In contested hearings it is possible the child will hear the evidence and allegations of abuse. That cannot be appropriate (Solicitor).
However, there were some who saw remote hearings in domestic abuse cases as being preferable with the suggestion that future hearings should continue to use remote hearings as a way to protect victims from contact with the perpetrator.
Further concerns included the difficulty of carrying out face to face assessments, or to observe them at home, or with their children. This is having an impact on psychiatric and psychological assessments, on independent social work reports, Cafcass assessments, and viability and full assessments of potential carers, as well as on the specialist assessments normally carried out by specialist services such as FDAC teams. There are also very limited services operating to carry out drug and alcohol testing.
Issues relating to the technology
Concerns were raised about access to appropriate technology (for parties and professionals), telephone hearings were viewed negatively by many respondents because it is not possible to read body language. Videoconferencing received more positive feedback when participants were able to overcome technical and connectivity issues.
Initially I had concerns about the ability of the judge to get the measure of witnesses but in fact the ability to see the demeanour and facial expressions of witnesses was probably clearer that in a court room where they are at some distance (Solicitor)
The lack of clarity about roles and responsibilities in terms of setting up and supporting the administration of hearings, the extent of professionals’ technological capabilities, and the limited IT support and training were the main issues regarding the use of technology. It is important to note that another barrier to fair hearings was respondents access to technology many parents do not have sufficient phone credit, WiFi, or data allowance to participate in telephone or video conferences, or necessary equipment such as smartphone, laptop, tablet, or desktop computer.
Many of the respondents to the consultation expressed concern about the difficulty of ensuring that the court process is fair and just when hearings are conducted remotely. The vast majority of respondents to the consultation recognised the need to balance the concerns about the appropriateness of a remote hearing with the welfare of the child and the risk of significant harm (and barely anyone opposed remote hearings in principle), but there were some who took the view that no remote hearing dealing with an issue of any substance beyond directions could be just or fair.
Impact of attending remote hearings on professionals’ well being
Remote working was reported to be having a negative impact on professionals’ health and well-being, including stress from an increase in administrative processes, eye strain from looking at screens and longer working hours.
In all cases I have had concerns about my health. I have now been working fully remotely since 23 March 2020 (a period of five weeks). In that time my eyesight has definitely deteriorated from peering at a screen for such long hours and I have had more headaches than normal (Barrister)
Again this was balanced by professionals who saw this as a more efficient way of working.
There is significantly less time wasted (waiting around at court for the hearing to start —sometimes all day) and less travel time (all parties on our cases are an hour away from the court centre)—advocates are more focused and prepared (Legal adviser)
Examples of good practice are also contained in the report as well as how to use technology effectively and suggestions relating to training and what cases should be heard remotely.
Overall, the report showed that such a wide variety of practices is being used across the country suggesting that some national guidance would be valuable, particularly regarding the circumstances in which a remote hearing is appropriate.
How DV-ACT are completing assessments at this time
DV-ACT are also working remotely and are continuing to offer the same expert domestic abuse assessments for care proceedings throughout the Coronavirus crisis. Assessments are still completed within the normal timescales of 4 - 6 weeks and are available across the UK, with the entire assessment process taking place online. Should the expert be required to give evidence in court with restrictions still in place, our experts already have experience at giving evidence to court remotely.
Our assessors have completed interviews using video calls successfully, in recent cases, using a variety of different technologies and have found this to be just as effective for providing an accurate assessment as face to face interviews. We have produced a step by step explanation of our new assessment process to give potential referrers an idea of how this works in practice. Please visit our post https://www.dvact.org/post/how-are-dv-act-completing-assessments-during-coronavirus-crisis for further details. The DV-ACT team is working from home, and are still available to answer any queries you may have about our assessments. To find out how DV-ACT assessments are used in care proceedings to safeguard children please visit our post https://www.dvact.org/post/how-are-dv-act-assessments-used-in-care-proceedings-to-safeguard-children
Our experts have decades of experience working directly with domestic abuse perpetrators and victims, as specialist assessors and as expert witnesses in the family courts.
DV-ACT was formed with the aim of using our expertise to help safeguard children from abuse, this is at the heart of everything that we do.