On 22nd July, the Nuffield Family Justice Observatory produced its eagerly awaited report into remote hearings in the Family Division (‘the Nuffield Report’). The Nuffield Report was urgently requested in June 2021 by the President of the Family Division in response to the lifting of social distancing measures, which necessitated the use of remote court hearings.
This article will summarise some of the Nuffield Report’s key findings, including where the Family Division has made mistakes, before exploring suggested good practice and what place remote hearings will have in the Family Justice system moving forward into a post-pandemic world.
Litigant’s Experiences of Remote Hearings
The Nuffield Foundation report surveyed over 3200 legal professionals and found that around two-thirds of practitioners believed that more needed to be done to make remote court hearings fair for all litigants whether represented or not. Some of the main issues highlighted by contributors included:
- Technological issues- While practitioners reported that the remote hearing process had improved since the beginning of the pandemic, many also reported continuing issues with connectivity and access to appropriate software. This included the observation that many litigants were joined to a remote hearing by phone, despite the hearing being conducted via video conferencing software.
- Fairness- Concerningly, 63% of professionals felt that the Family Division needed to do more to improve the overall fairness of remote court proceedings. This is both in terms of the client understanding the process as a whole and access to the relevant technology (alongside the ability to effectively use it during the remote hearing). This is reflected in 83% of parents having concerns about the way in which their remote court hearing was conducted.
- Delay- One of the consequences of the Covid-19 pandemic is an increased backlog of cases in the Family court. However, this delay cannot be singularly attributed to the pandemic. Certain issues predate March 2020 including resource pressures, judicial availability and delayed expert assessments. Contributors pointed to the difficulty in obtaining a suitable court date and the difficulty in explaining to clients why the hearing could not be held immediately.
From the various contributions, it is clear that the pandemic has had a marked impact on the fairness of remote hearings in the Family court. In light of these issues, the Nuffield Report set out suggestions for good practice in order to mitigate the detrimental effect of remote hearings.
Suggested Good Practice
The Nuffield Report acknowledges that, in the past 18 months, remote court hearings have become the default in the Family court. Therefore, given that remote hearings may remain a key part of the Family court’s push for greater efficiency in the coming months, the Nuffield Report outlines some suggestions for good practice moving forward. These are centred on the report’s findings and interviews with both legal professionals and, more importantly, litigants.
Deciding how hearings are run
The Nuffield Report highlights the importance of increased flexibility in determining whether a case is suitable for a remote hearing. This should take into account: language needs, access to a private and confidential space to join the hearing, access to technology, the need for support from an advocate or social worker and any literacy considerations.
In light of this need for flexibility, the Nuffield Report suggested the creation of a triage system whereby the Family Division can holistically assess the needs of a litigant in advance of listing. Some contributors suggested that remote technology could continue to play an important role in certain types of hearings such as case management and ex-parte hearings. However, this is a decision that should be made on a case-by-case basis following assessment of the litigant’s individual needs.
Improving how remote hearings are conducted
With the Nuffield Report’s findings in mind, the Nuffield Foundation explicitly referenced several ways in which the Family Division could improve the experience of litigants (both represented and in-person) when contributing to a remotely run hearing.
- Preparation before the hearing- CAFCASS has suggested that hearings begin 15/30 minutes before the scheduled time. This would permit an opportunity to ensure relevant links are working and a period in which the judge can answer any questions that litigants may have about the technology or court process.
- Improved technological support- The report suggests that, just as an in-person court hearings benefit from the assistance of ushers, online hearings should have a HMCTS member of staff on hand to ensure the smooth running of the remote hearing. Given the reality of the Family Division’s budget constraints, practitioners should, arguably, see technological support as part of their role in supporting a client and always seek to have a line of communication open during the hearing.
- Providing better access to bundles- This includes ensuring that a bundle is both available and sent to the judge at least 5 working days prior to the remote hearing. In addition, practitioners should take time with clients to demonstrate access to remote bundles and, more importantly, how to navigate through bundles during the hearing.
Moving Forward
In the immediate to mid-term, it is likely that remote court hearings will continue to play a role in the Family Division. However, contributors to the Nuffield Report are clear in that Family courts should aspire to return to in-person hearings at the earliest possible opportunity. Various third parties all agree that remote hearings have had some impact on the fairness of proceedings in the Family Division, yet these can be mitigated via good practice and learning from the experiences of practioners and litigants alike.
However, it is clear that the key-word coming through the report is ‘support’. Practioners must make a conscious effort to support litigants throughout the remote hearing process to ensure substantive and procedural fairness. This support can be achieved via adherence to the suggested good practice and continuing self-reflection through discussion with both fellow practioners and lay clients.
