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More needs to be done to ensure fairness of remote family hearings

A survey carried out by the Nuffield Family Justice Observatory suggests that more needs to be done to make remote family hearings work fairly and smoothly whilst there is an overall agreement that remote hearings should continue in some cases.  Here, we offer a resumé of the positive and negative views found by the survey.

remote family hearings

Bradie Pell

As a result of the pressures put on courts during the COVID-19 pandemic, remote family hearings are now commonplace.  The survey, “Remote hearings in the family court post-pandemic”, which sought views from over 3,200 family law and family justice professionals, parents and other family members in England and Wales, was commissioned by the President of the Family Division to help with post-pandemic recovery planning by the Family Court.

In short, of the professionals surveyed, 63% felt that more needs to be done to ensure that remote hearings work smoothly and are fair, and some felt that remote hearings will always be inferior to in-person hearings.

83% of parents surveyed had concerns about how their cases had been handled and 73% of parents said that they had not felt supported during the case.    In fact, 46% of parents surveyed said they had not had legal representation.

Other concerns raised by the survey include:

  • Being unable to fully participate in hearings due to difficulties by lay parties in accessing technology. One-third of parents responding said they had joined remote hearings by telephone, even if the hearing was being held by video conference.
  • Confidentiality and privacy – particularly in situations where other people had been close by or the parties were using public spaces.
  • Communication needs of some parents were not met.
  • Hearings arranged at short notice.
  • Insufficient information being provided before the hearing.
  • Rushed hearings and court papers being unavailable.
  • Parents not being given a choice as to whether a case was heard remotely or in person.
  • Human interaction being lost as well as the ability to gauge non-verbal communication.
  • Delays, caused by:
    • the pandemic itself
    • resource capacity that predated the pandemic but was exacerbated by it

Despite these issues, most of the professionals who responded to the survey felt that there is a role for remote hearings in the future.  In particular, over 80% felt that fact-finding hearings could, or could with some caveats, be held remotely. In general, these professionals found that flexibility is the key to deciding whether a case should be held in person or remotely and that in-person hearings should be the default format in cases where there are vulnerable lay parties and/or the case is complex or where it is felt that the parties may not be able to fully participate in what is going on and/or understand it.

Some professionals felt that remote hearings should continue, saying that they are generally more efficient and that their clients find them less stressful and prefer them as they can remain in their own homes.  Several other benefits to remote hearings were highlighted in the survey, including:

  • They are more likely to take place on time.
  • Specific timeslots are scheduled for remote hearings, rather than several cases being scheduled at a particular time – say 10 am or 2 pm – which is the traditional practice in the courts.
  • No need to travel.
  • Better work-life balance for professionals.
  • Less stress and anxiety for lay parties who do not have to see the other parties and don’t have the stress of having to travel to court.
  • The safety of lay parties who are involved in allegations of domestic abuse is better protected.

The survey brought some suggestions as to how remote hearings could be improved in the future, including:

  • Ensuring legal representatives and their clients are better prepared for the hearing, by:
  • Ensuring they have access to the correct technology.
  • Providing guidance on how to use the technology.
  • Improving the technology.
  • Providing places where parties and their representatives can attend the remote hearing.

If you would like to read the full report, you can find it here. Remote hearings in the family court post-pandemic

Author: Bradie Pell, partner and head of Graysons’ family team.

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