Most professionals involved in the family justice system feel that things are working smoothly either all of the time or some of the time, a follow-up report by the Nuffield Family Justice Observatory (NFJO) into the use of remote hearings has found.
However, parents, other family members and organisations supporting parents were less positive about remote hearings.
“The majority of parents and family members had concerns about the way their case had been dealt with and just under half said they had not understood what had happened during the hearing,” the report, Remote hearings in the family justice system: follow-up consultation, suggested.
On the issue of whether remote hearings were fair and just, the NFJO report said:
- “Most professionals who responded to the survey felt that fairness and justice had been achieved in the cases they were involved with most or all of the time. However, it was clear from responses that professionals also had concerns about whether proceedings were perceived as fair by parties in all cases. Professionals also shared concerns about the difficulties of being sufficiently empathetic, supportive, and attuned to lay parties when conducting hearings remotely.
- Common problems that were highlighted included: parents taking part in hearings remotely alone, and from their homes; a lack of communication between lay parties and their legal representatives before hearings; and difficulties with communication during hearings because of the need to use more than one device or to adjourn the hearing. Particular difficulties are experienced by parents who require an interpreter or who have a disability.
- The halt in face-to-face contact between infants and parents in cases involving interim care proceedings was highlighted as a concern, as was the lack of support to new mothers involved in interim care order applications.
- There was widespread concern for litigants in person in private law matters. Many examples were given of support being provided by judges, magistrates,and legal advisers. There was recognition of the challenge for McKenzie Friends in remote hearings and the limitations on other support that could be provided from organisations like Support Through Court.”
On the technology used for remote hearings, the NFJO report said there continued to be many technical problems encountered in most forms of remote hearing. “Most problems related to connectivity and common issues identified included difficulty in hearing people, difficulty seeing people, and difficulty identifying who is speaking.”
More than half of professionals had taken part in a hybrid hearing where some people were attending in person and some via a telephone or video link. “Although such hearings were felt to be important (as they could enable parties to attend hearings with their representatives and therefore fully participate in hearings), many professionals reported technological difficulties of running hybrid hearings,” the report said.
The NFJO also heard of wide variations in practice in terms of how remote hearings are organised. Where problems occurred, they included a lack of advance notice, sudden cancellations, and a lack of clarity about which format would be used for the hearing.
Lay parties continued to have difficulty accessing hearings because they lacked the hardware, connectivity or skills to navigate the software. “Efforts are being made by professionals to help lay parties, but it is not clear who has the responsibility for this.”
In relation to e-bundles, these were found to be working well in some areas. However, concerns were expressed by some respondents about: lay parties not having access to e-bundles; bundles and relevant documentation not reaching the judge or the bench in time for the hearing; and a lack of clarity about how best to communicate with courts and judges in relation to documentation.
Professionals also reported that a lack of sufficient court staff was hampering the smooth running of hearings, leading to inefficiencies in the way that hearings are managed and in the use of judicial time.
The NFJO report was based on a follow up consultation which took place from 10-30 September, with more than 1,300 respondents completing the survey.
The President of the Family Division, Sir Andrew McFarlane, who asked the NFJO to undertake the research, said: “This emergency is without precedent. Judges and others have worked tirelessly, and continue to do so, so that the Family Court has continued to function without a break since the start of 'lockdown' in March. We have adjusted, developed and adapted our methods of working as the crisis has persisted.
“Much of the work of the Family Court cannot be left to wait as many cases, involving the welfare of children as well as adults, are urgent. Because of the need for social distancing most cases are currently heard remotely (either wholly or in part). The report highlights that everyone is doing their best in the circumstances.”
The President added: “Encouragingly, most professionals, including judges, barristers, solicitors, Cafcass workers, court staff and social workers, felt that, overall, the courts were now working more effectively and that there were even some benefits for all to working remotely."
However, the report highlighted a number of areas of concern that needed to be addressed, he said. "There are clearly circumstances where more support is required to enable parents and young people to take part in remote hearings effectively. It is worrying that some parents report that they have not fully understood, or felt a part of, the remote court process.
“Whilst technology is improving, there is clearly still work to be done to improve the provision of Family Justice via remote means. I am very alert to the concerns raised in this report, and I will be working with the judiciary and the professions to develop solutions.”