Recent cases have highlighted that very careful consideration needs to be given by the family courts to whether a hearing can be dealt with remotely during the current pandemic when safe in person hearings often cannot take place. Concerns include that cases involving children will often require a detailed assessment of the evidence which may not be possible to achieve remotely.
Late last week, another case was reported in which concerns were raised by the Court of Appeal about the workload of judges dealing with remote hearings all day at the same time as receiving multiple bundles and statements by email and whether that was a contributory factor in a wrong decision which was ultimately overturned.
There are pros and cons for all parties
Whilst most courts can manage remote hearings this might not be the right solution to ensure a fair result for the people at the centre of the case
If a hearing is deemed suitable to be heard remotely the courts will have telephone or (often preferably) video options. This would mean a case can go ahead avoiding a potentially long wait for a hearing date in court sometime in the future once the lockdown restrictions have eased.
In cases involving children (particularly care proceedings) a remote hearing might not be suitable due to the evidence the court has to consider, the degree to which the court might need to analyse the behaviour of a parent which will not always be possible during a remote hearing and the need for the parents to engage with and effectively participate in the proceedings.
Another important consideration (in financial and children proceedings) is whether one party may be unfairly prejudiced by a significant delay which may be caused by not dealing with the case remotely now. In some cases, it may be best to wait due to the economic and personal uncertainty presented by the current circumstances. Hearings which are intended to aid settlement (such as FDRs) may also be less likely to succeed if all the parties are not in the same location for a whole day with the impetus to get matters resolved.
Just because a case can be heard remotely, it doesn’t always mean it should be heard remotely
The advantage of a remote hearing is that a case can continue and conclusions can be achieved to help families to move forward with the next phase in their lives. Hearings this way can be a better experience for some than going to court especially if all parties are comfortable using the relevant technology. If the parties involved in the case are not technologically confident, this may lead to additional stress and they may prefer if their case was adjourned until all parties can appear in court.
In all cases, it is ultimately the court’s decision as to whether a hearing will proceed remotely or not. Judges are very alive to all these issues and are both understanding and appreciative of parties and legal representatives who are making this process work.
One of the big questions that will undoubtedly arise as a result of navigating issues of court hearings during the COVID-19 era is whether some cases (and particularly interim hearings) should be heard remotely going forward and whether this would benefit the families who need to use the court system.
Sir Andrew MacFarlane recently handed down judgment in Re P a case in which he had to decide whether a 15-day hearing should be conducted remotely or adjourned until after the lockdown.
The case highlights that not all hearings will be suitable for dealing with remotely. In this article we address the pros and cons, and some key issues to be considered for fellow practitioners and for clients, although of course ultimately the decision about whether a hearing can proceed remotely will be for the judge.
More recently, the Court of Appeal decision in Re B included the observation that “by that time the Recorder had been working, almost continuously and mainly on the telephone, for 10½ hours. Our observation is that, although we have found the decision in this case to have been unquestionably wrong, the nature of the workload faced by the Recorder, experienced as he is, was surely a contributory factor”. This raises further concerns about the burden of remote hearings and remote working on the judiciary.
The week commencing 23 March 2020 saw lots of changes across all professions and in everyone’s domestic lives. Judges, court administrators, ushers, and many others are working hard to keep courts running as smoothly as possible in these difficult times. Many barristers and solicitors are adapting their working practices and thinking objectively about how to move matters forward in the best way possible. Those that use the court system however continue to have questions about how the lockdown might affect their case, particularly if a hearing is imminent or listed over the next few months and whether that hearing can take place remotely.
If a judge decides that a hearing is suitable for dealing with remotely there are a couple of options;
a. by video-link: different courts prefer different equipment and/or software for this purpose such as Skype [for Business], Zoom, and there are trials in some courts of CVP.
The majority of courtrooms already have some form of video capacity due to the need in some cases for a witness or party to give evidence this way i.e. where they are unable to physically attend the court building.
b. by telephone: smaller, less complex, and/or applications on discrete issues can be dealt with by way of a simple telephone hearing which is organised by a facilitator and where each party/ their representative is given a number to “dial in”.
In each case, careful consideration will be given to whether a hearing is suitable for dealing with remotely rather than adjourning until after the lockdown is lifted. Legal representatives can put arguments forward to the judge for consideration, for or against a remote hearing, depending on what they and their client thinks is the best approach but ultimately the judge will decide. There will inevitably be a bottleneck of adjourned hearings after the lockdown has been lifted and there is no guarantee how soon a case may be relisted. In some cases, a party may be unfairly prejudiced by such a significant delay and in others it may be best to wait due to the economic and personal uncertainty presented by the current circumstances.
In the case of Re P, the reasons given by Sir Andrew MacFarlane for that case not being suitable for a remote hearing included;
- there were a series of allegations made by the local authority in care proceedings and the need to consider a wealth of evidence, including oral evidence from the parties, GP, school, and social workers. In addition, there was to be oral evidence from expert paediatricians, a psychiatrist, and a psychologist – over the course of 15 days.
- This was a potentially very complicated case which required ‘exquisite sensitivity and skill on the part of the court.’
- “It is a crucial element ‘in the judge’s analysis for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined”
- A remote hearing would not allow effective participation for the parent or engagement with the parent. The parent would also struggle to give instructions to her legal team.
- There was a risk that the process would not be fair.
Whilst each case must be determined on its own facts it seems likely that lengthy hearings with complex evidence from multiple witnesses will fall into the category of cases that will not be suitable to be heard in this way. The judgment notes that “establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.”
Our experience so far
Since the lockdown began, our Family Team has dealt with several remote hearings including;
- a 3-day final hearing in financial remedy proceedings using Skype for business;
- 2 permission to appeal hearings – one over telephone and one using CVP;
- several telephone hearings.
A key advantage of a remote hearing is that it enables you to maintain the momentum of a case without the delay caused by an adjournment. Judges are aware that remote hearings are outside the norm for the majority of people and are both appreciative and understanding of this during hearings. Telephone hearings are also particularly useful where a discrete issue/direction needs to be considered by the court and full attendance of all parties would not be cost-efficient in any event.
There are negatives to conducting hearings remotely however we have found that in most cases these are predominantly technological/practical in nature. Although these should not be dismissed and can lead to a hearing taking longer and not proceeding as smoothly as usual, these are very different considerations to those in Re P (which it should be noted was an uncommon 15-day hearing with multiple complex legal issues under consideration). Many of these practical and technological issues will be smoothed out the more people use the court system in this way and the more at-home legal professionals become with the technology and the practical expectations the easier many of these will be to overcome.
Many will find the idea of a remote hearing unpalatable (or, for more vulnerable clients, potentially a scary prospect) particularly if they or their advisors are not au fait with the latest technology. More importantly some may feel that the way in which a remote hearing is conducted does not have the expected degree of solemnity as a hearing in a court building with a judge physically in the room. It is important to manage expectations about the experience if a decision is made to proceed remotely.
- a hearing via video-link is unlikely to run smoothly, with a morning and an afternoon session and an hour for lunch, like a usual court-day. There will likely be intermittent signal-failures, and audio/visual connectivity issues (with parties or their legal representatives dropping out of the hearing) to contend with throughout.
- This is still a court hearing, and usual rules apply (including dressing and behaving appropriately).
- If a final hearing at which a judge will make a decision – the court will still have the benefit of all of the papers and, if relevant, hearing and testing oral evidence. The parties will still have “their day in court” if that is an important consideration. It is the packaging, rather than the substance, that has altered.
- A party will be able to communicate with their solicitor during the hearing to ask questions or give instructions (when not giving evidence). To do this consider setting up a temporary ‘WhatsApp’ group (or equivalent) to enable quick instant messaging between solicitor and client, and/or counsel during the hearing
Judges are very alive to these issues and are both understanding and appreciative of parties and legal representatives who are making this process work.
Remote hearings may not be appropriate for some cases; but in many cases they can be an effective alternative to adjourning matters.