Remote hearings in the family justice system: an update.
In April there was a rapid consultation on the use of remote hearings. An update has recently been published.
Law in Action, on Radio Four this week, featured an overview of the impact on the family courts as a result of the pandemic in particular looking at the consultation. The President of the Family Division Sir Andrew McFarlane was also interviewed and gave some interesting insights into the way family cases should be dealt with.
In relation to the consultation on remote hearings it was felt that overall fairness was achieved however there were concerns about parents in all types of hearings having to attend remotely and alone from their homes.
Sometimes parties have found it hard to have discussions prior to and during the hearings with their legal representatives as multiple devices might be needed.
The Law in Action segment highlighted concerns in care proceedings with some parents, in particular, mothers, who face having a child removed from their care, attending remotely, sometimes from a hospital ward with no face to face access to legal advice.
Issues were raised about the impact on the formality of the proceedings and the authority of the court as a result of the possible perceived informality of remote hearings. Some lay parties are more inclined to shout out and parties can talk over each other.
Technology was highlighted as an ongoing area that can cause issues for parties particularly for lay parties who may not have access to all the digital papers for the cases. There is an uneven approach to setting up the hearings from different courts and there are not always enough trained staff to manage the technology.
Proceedings that involve domestic abuse were also highlighted as an area of concern. There has been a significant increase in domestic abuse cases particularly in some urban courts. The second lockdown may see a further increase. There is also an issue if these types of cases are being dealt with by way of video link you may have to look directly at a screen with the perpetrator of abuse on it throughout the hearing as special measures are more difficult to put in place.
Notably delays are an ongoing issue. Particularly where parties are waiting for hybrid (some parties in Court, some remote) or face to face hearings and a lack of court rooms and judges have been identified as a reason.
In the interview with Sir Andrew McFarlane he confirmed that there is a lack of district judges and they are recruiting. He was also keen to highlight the benefit of other types of remedy other than taking your case to court. Apparently, something like 40% of all separating couples take their case to the family court to resolve the ordinary arrangements for their children. He said that in cases where parties are coming to court for the protection of you or your children you must do so but for others ‘the message has to be it is not smart to come to the family court.’ The push is towards alternative dispute resolution methods which can be cheaper, and he went on to discuss arbitration which has recently been in the news in the case of Haley v Haley. He pointed out that arbitration is fairly new in the family law sphere and it is a ‘myth to say that it is only available to rich people’ echoing the comments of the Court of Appeal in Haley v Haley.
It is likely that Judges will be continuing to encourage parties to try mediation and arbitration as much as possible in the future to ease the burden on the courts and try and reach a speedier resolution for some families.
Whilst remote hearings are working, lay parties found them harder than professionals. It is however a challenging landscape and one that is harder to navigate than eight months ago.
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