Family analysis: Charles Hale QC of 4PB considers remote hearings, both during the coronavirus (COVID-19) pandemic and in the longer term, the advantages of hearings taking place remotely and factors that can increase effectiveness, as well as areas for improvement.
How effective are remote hearings, in your experience?
The pandemic has changed many things for good and the structure and delivery of family justice is most certainly one of them. Remote hearings are now up and running, and in my view, very much here to stay. The effectiveness of remote hearings depends in my recent experience on at least the presence of three things:
Some hearings can be dealt with more than adequately on the telephone (usually BTMeetMe). In my experience both first hearing dispute resolution appointments in private law children cases and first directions appointments have been effective over a call. There can be problems—at the start of the ‘new normal’, I had a hearing involving a father in Iraq who was called by the court to take part in the hearing—the father dropped out of the call once, but I dropped out twice and I was in London! It took a judicial deep breath and perseverance, but the hearing was by the end fairly heard and determined.
What do you anticipate will be the long-term approach to remote hearings?
There is no doubt that remote hearings will, for the foreseeable future, be the ‘new normal’ in almost all family cases, save those which will require an open court hearing for severe urgency or some other good reason. Judges will become more used to the tech and more willing to case manage hearings in advance to ensure a smoother delivery of family justice. There really is not a choice—families up and down the country have been deeply affected and many are waiting for their disputes to be heard and the stress of delay, inimical to children and parents alike, has to be met by a willingness on the part of the family justice system to provide answers. That must mean a system of more, not less, hearings and that will mean, remotely.
There is no doubt (among judges and practitioners alike) that the court service current tech is simply not fit for purpose. The court service, together with the senior leadership judges charged with managing the crisis, are clearly stepping up to the plate and are tackling the tech issues head on. A new cloud based digital platform is already being trialled to be rolled out to all courts.
What are the challenges of remote hearings? When may they be unsuitable?
The challenges, in my view, are all concerned with how the service users—the clients, children, guardians and local authorities—are able to feel that they have had a fair hearing using the remote platform chosen for the hearing.
Some cases, as with the recent authorities from the President of the Family Division, might not be suitable for remote hearings at all. But then, the decision to adjourn a hearing has to be balanced against the inevitable delay incurred, and whose to say when an adjourned hearing might ever have a live, in-court, hearing.
The insightful decision of Lieven J in A Local Authority v Mother , , decided on 5 May 2020, was perhaps the first real judicial attempt to breakdown the competing factors to be considered when one or other party to a hearing does not want it to continue remotely (in this case five days of medical evidence by Zoom had already been heard). Having heard submissions on the issues of demeanour and the perceived problems of remote video links of lay witnesses, Lieven J determined that she did not think that it was possible to say ‘...as a generality that a remote hearing is less good at getting to the truth than one in a courtroom’ (para [29]). The judge did not decide that a witness was more inclined to tell the truth if in person and agreed with the argument that in fact remote video hearings for some witnesses could also positively enable them to deliver their account in better conditions. Lieven J concluded that in her opinion ‘demeanour will often not be a good guide to truthfulness’ (para [27]).
One thing that seems to be universally the experience of remote hearings—they are unusually tiring.
What are the advantages?
The major advantage, at the moment, is simply that people are getting their matters heard, full stop. The word ‘unprecedented’ has almost become hackneyed after nine weeks of lock-down, but in the family justice field it truly fits. No one can underestimate the stress caused to all parts of a family by the delay in having a financial dispute resolution hearing listed, or a determination of facts which, when alleged, stopped all contact with one parent. These are completely life-changing events for people who look to the courts for answers they are unable to reach together.
There are some real advantages. For the advocate, you can be heard in Manchester in the morning and London in the afternoon! For individuals, not being in the stressful environment of a court building may well help them give their best evidence, not evidence given under overwhelming stress. In these days of increased consideration of wellbeing, giving evidence from the relative comfort of your kitchen may have a seriously assistive effect on mental health as well as the quality of your evidence.
On a practical level, using platforms such as Zoom allows a party to see their advocate face to face when they make submissions to a judge, not a luxury that most courts structures allow. The use of private breakout rooms are perfectly acceptable vehicles for conferences and negotiations.
Remote hearings are plainly here to stay and continued, major investment will be needed to ensure the judges have the ability to deliver justice from now on, down the line.
Interviewed by Geraldine Morris, solicitor and head of Lexis®PSL Family.
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