In the two-week period immediately following the imposition of the current lockdown, telephone hearings across all courts and tribunals in England and Wales had increased by over 500% and video hearing by 340%. The FJO were asked to carry out a consultation by the President of the Family Division to examine impact of this significant change. The FJO report summarises the responses received between 14th and 28th April 2020 from well over 1,000 individuals connected with the family justice system. The consultation applied to all types of hearings, both private and public.
The respondents to the consultation were varied: they included everyone from lay parties to the judiciary; Cafcass officers to court staff. Eight broad questions (aimed at eliciting the pros and cons of remote working) were asked of participants with responses given via email or telephone. Many other organisations undertook their own consultation over the same period and shared their responses with the FJO. The FJO also undertook a series of events with feedback captured from participants at the end of each session. The result is a detailed report which, to use the words of the President in his most recent ‘View from The President’s [Remote] Chambers’, holds ‘a mirror up to what we are currently doing’.
The report records a somewhat mixed response to the rapid roll-out of remote hearings.
Firstly, the report identifies that most hearings are going ahead via telephone (even though respondents to the consultation felt that Skype or some other form of video hearing was more effective).
Most respondents considered that remote hearings were justified for some cases in the current circumstances and some felt that telephone and/or video hearings may the way forward for certain hearings in the future, i.e. for directions hearings or those to approve agreed final orders, as remote hearings can reduce travel time and time spent waiting at court for a case to be called on.
However, many respondents raised significant concerns about the fairness of remote hearings and gave troubling descriptions of the way some cases had been conducted. Interestingly, the report prints responses from several members of the judiciary who themselves had real concerns about the fairness of remote hearings, particularly as they felt unable remotely to read reactions and communicate complex information in a sensitive and humane manner. Many respondents also raised concerns about the ability of parties to participate fully in a telephone or video hearing. Difficulties are particularly acute where, for example, parties require an intermediary or an interpreter, or where there are disabilities or cognitive impairments. Furthermore, many respondents (including members of the judiciary) considered that contested final hearings and any hearings requiring cross-examination were unsuitable for remote hearings.
The report also notes a number of concerns about lack of access to appropriate technology and the limited IT support and training available thus far, as well as the inability to maintain confidentiality when working from a shared home environment and by using telephone conferencing facilities that, at times, proved insecure.
In terms of well-being, respondents to the consultation reported that the current remote working is having a negative impact on their health (remote hearings are reported to be particularly draining and some responses comment specifically on drowning in guidance at the start of the lockdown). However, there were some positive pieces of feedback in this area: some lay parties reported that not having to attend the court building reduced their levels of stress and some professionals felt they were able to work more efficiently (as hearings are no longer being block-listed but instead go ahead at their scheduled time for example).
Perhaps of most interest to professionals are the suggestions for best practice set out at the end of the report (at Section 6 from page 39 onwards). Numerous tips are provided from the obvious (“advocates should have a pre-hearing discussion with their clients”) to the more creative (“there should be a check on whether parties are alone by asking them to do a camera sweep of the room”). There is also a long list of requests for further guidance.
The President gave a written response to the FJO report on 7th May 2020 in his ‘View from The President’s [Remote] Chambers’. He confirmed that from now on HMCTS, rather than the parties, would be responsible for setting up and hosting remote hearings. He has also indicated that he will continue to discuss with ‘judges, the profession and others whether there is a need for further guidance’. The President has made one thing very clear however: whatever the concerns raised in the report, he will stop short of a blanket ban on the hearing of particular categories of cases remotely and judges will still need to consider whether hearings can go ahead on a case by case basis. This answers the most obvious question posed by responses to the FJO consultation, namely whether all hearings requiring cross-examination or involving vulnerable parties should cease to be heard remotely.
The FJO report on Remote Hearings in the Family Justice System provides a very useful summary of what is happening on the ground at the moment. With no sign of an immediate return to in-person hearings it seems that we will all be feeling our way through this for some time to come.