25 Sep Remote Access to Justice
By Isabel Agudo (Junior Associate) and Adam Paterson (Senior Associate)
Although lockdown restrictions have eased, the Family Court continues to hear cases remotely via telephone or video conferencing. Telephone case management hearings have for years been available for civil matters, but until recently, family cases were not ordinarily dealt with remotely. Based on the experiences of solicitors, barristers, judges and other court users in the last few months, there have been mixed feelings about the effectiveness of remote hearings.
Practical Issues and the Human Touch
In April 2020 an anonymous family judge published concerns around their ability to make decisions remotely with the same level of empathy and understanding. This is particularly unsurprising for cases where children’s care arrangements are in dispute and parents’ emotions are running high. The human touch is impossible to replicate – realistic assessments of a parent’s nerves, for instance, or the clarity of a reassuring gesture from the judge.
Another issue is the fear that a party giving evidence might be simultaneously texting or emailing other individuals that they should not be communicating with – this would be easier to monitor in a traditional, in–person hearing. An ex-partner, for example, may be sending threatening messages to a vulnerable individual during a hearing where domestic abuse is an issue.
Privacy and security become bigger concerns both in terms of cyber security and the behaviour of those engaged in the proceedings. In some cases, children have been observed to enter the room in the middle of a remote hearing due to inadequate space at home, consequently witnessing their distressed parent. This sits at complete odds with all the guidance to protect children from the parental conflict so far as is possible.
Underpinning all of that, there are some very basic issues: a misplaced press of a button during a hearing can mean dialling in the wrong people. Accidentally “unmuting” oneself can be problematic during a court hearing. Wi–Fi interruption might mean that a client misses part of their hearing. It is difficult to see how a client can take ownership of and feel involved in their proceedings when they cannot hear or see what is being said.
In addition, the “day at court” often consists of more than the hearing before the judge. Settlement discussions can take place outside of the actual courtroom. Various online platforms allow for virtual meeting rooms to be set up to recreate this scenario but it is not the same environment and arguably not effective for the client. The longer these practices are in place, the better users will become at making use of them.
Benefits of Remote Hearings and Ongoing Developments
In July 2020 HM Courts & Tribunals Service announced that a new, bespoke cloud video platform (CVP) will be rolled out to the family courts. Sessions can be locked to make sure only the appropriate parties join and training rooms can be set up for rehearsals before going live. Scaled up audio and video capabilities should address unforeseen problems including how to deal with legally privileged conversations. The CVP has already been used in crown court hearings and remand cases. However, anecdotally, we know that some judges have refused to use the platform and prefer other programs to conduct the hearings. For everyone involved, it has been a significant adjustment.
For less emotionally complicated matters where face-to-face hearings are simply not as critical, video hearings may cut costs and speed up the process in the long run. The commute and the subsequent waiting period inside a court building before a hearing starts can be excessively time-consuming (particularly noting that many if not most solicitors charge via an hourly rate). With remote hearings, parties have more autonomy over how to make use of their waiting time.
Moreover, ex-spouses who would rather not see each other in person would benefit from the distance that comes with remote hearings. Even in cases where a couple’s relationship is not rife with animosity, contested family law proceedings are generally emotional for those involved. Therefore, allowing both parties and witnesses like friends or relatives to participate in the judicial process from the comfort of their home helps their experience feel less intimidating.
Another benefit is the transition from voluminous physical paper files to electronic bundles and the modernisation of the hearing process. Numerous judgments make reference to large unnecessary bundles, much of which is not even referred to during the hearing. Practice direction 27A was introduced to deal with this issue but it is not always complied with. Being able to file an electronic bundle, to bookmark the most important reading materials and to file documents that might be referred to without sending a judge several lever arches is a step in the right direction.
The most obvious advantage of remote hearings is the safety of all parties. The coronavirus pandemic is unfortunately far from over in light of current news, and the pursuit of justice must now be considered in view of the health and well-being of clients and their advisers.
The Future of Fairness and Financial Remedy in Family Law
Even when the global pandemic does come to an end sometime in the future, the lessons learned about remote hearings indicate that the promise of e-bundles, screen-sharing services, active chat functions, and the cost-effective reduction in travel time should be optimised alongside other digital improvements where appropriate. The legal profession will have the opportunity to take the positives from this period and evolve whilst returning to the court room where needed.
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