Remote hearings—what lies ahead?

Remote hearings—what lies ahead?

Family analysis: Alexander Laing, barrister at Coram Chambers, discusses the operation of remote hearings during the coronavirus (COVID-19) pandemic and opines as to the extent to which such hearings may be used going forward.

How effective are remote hearings in your experience?

Remote hearings are satisfactory to the extent that, for many cases, they offer a fair process with fair outcomes. Nevertheless, even in those circumstances, something fundamental is missing. For many people whose lives are being churned through the family justice system, the outcome is of defining importance but so is the process of being heard. The lack of immediacy steals something important from that. For many clients, especially at a final hearing at which a significant, heavily contested and long-lasting decision will be made in relation to their life, there is a need to feel the intensity of the process, to live its nuances, to be able to pass notes and express deep frustration (whether with the process, a former partner or the judge) to your lawyer. That is removed. It feels colder. It feels less immediate. It feels more ‘remote’.

In some cases, the problem goes further than that. Back on 16 April 2020, Sir Andrew McFarlane P, in Re P (A Child: Remote Hearing) [2020] EWFC 32, [2020] All ER (D) 115 (Apr), said (at para [26]) in relation to that case:

‘The judge who undertakes [the final hearing] may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom…and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing…live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment. I do not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as I have indicated, the court with the parent. I also consider that there is a significant risk that the process as a whole would not be fair.’

Of course, while the approach of the family justice system has since been forced to change, the unwillingness in the early weeks of the coronavirus pandemic to hold trials having given way, under the crushing weight of children and families whose lives need legal decisions, to a desire to ‘get things done, as best we can’, the unhappy truth is that every difficulty identified by the President in April 2020 remains.

What do you anticipate will be the long-term approach to remote hearings?

For the present, remote hearings are here to stay. Whether a long-term culture change will be brought about by coronavirus is hard to predict, and in that sense, I imagine that the family justice system is in the same position as many other institutions across the UK and beyond. I anticipate that there will be a long-term legacy, with a slight increase in the use of remote hearings across the board, but with the majority of hearings (certainly trials and final hearings) going back to being conducted in person.

What are the challenges of remote hearings? When may they be unsuitable?

In ‘normal times’, I cannot see that remote hearings are suitable for anything other than relatively simple directions hearings. In relation to that type of hearing there is much to commend them, especially if a remote hearing saves the cost of paying for lawyers to spend many hours in a court corridor.

What are the advantages of remote hearings?

There is a small advantage for the lawyers—fewer Monday mornings huddling on a cold train platform, warming hands and nose on a hot drink, awaiting the 06.42 to Swindon (or other suitably distant family court). Or fewer sticky Tuesdays on the squished Central Line, heading for the Royal Courts of Justice, drowning in a sea of armpits. But we do this job to help in the dispensation of justice—and we would, I am sure, be happy to sit/stand/squish ourselves onto any number of trains to increase the prospect of that happening!

Additionally, remote hearings allow one to avoid the court estate. The ease of conducting hearings remotely from one’s home emphasises the extent to which much of the court estate is ill-suited to the task it is pressed into performing. Noisy and chaotic corridors, broken lavatories, a few seats for those who get there early—is that the arena in which you would wish your client’s financial future, or the best interests of their children, to be fought? If not, write to your local MP and demand an explanation for the insufficient funding of the justice system year after year.

Interviewed by Pietra Asprou.

This News Analysis was first published by LexisPSL Family. Click here to request a free one-week trial.


 

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