The Family Justice System’s response to remote hearings in children proceedings

In the last four weeks, the Family Justice System has experienced significant change. Prior to March 2020 clients occasionally participated in hearings by telephone. In international cases, parties and witnesses occasionally gave evidence by video link. It was the exception and not the rule. Many professionals involved within the Family Justice System had never experienced a case were a person participated from a place other than in the court room.

Now, four weeks later, remote hearings are the new normal, home working is the rule, attendance at court is the exception. That has been possible only because of the dedication of all those that contribute to the working of the Family Justice System. For some, the adaption has been fairly straightforward, for others it has been anything but; yet every single person in every organisation has worked tirelessly to make it happen. However, that does not mean it is working as well as it needs to. This is, after all, is not a business that can ‘make do’.

Mr Justice Mostyn conducted a complicated hearing over a number of days with multiple witnesses on an end of life case in the very early stages of remote working. Professionals involved, including Mr Justice Mostyn, said it worked well. It is important that it did, as it perhaps was not a case that could have been adjourned to allow for the pandemic to subside. There have been a number of complex hearings that have been conducted remotely since this time with praise for the remote working adaptions made by the Family Justice System.

Members of the judiciary are aware of the need to ensure that justice is done and seen to be done. Senior members of the judiciary have been regularly reviewing and reflecting on remote working and issuing new guidance, whilst giving the local judiciary the necessary flexibility to allow autonomy in the best interests of the case at hand. That guidance has been circulated and can be found on the Liverpool Law Society website.

The guidance has mainly centred on the type of technology to be used, the security of that technology and how certain hearings can be made effective using technology. This is commendable, ensuring that cases can go ahead is important. The question now being asked, and I believe rightly so, is whether hearings that can happen should proceed remotely. A rapid consultation is now taking place on this subject with responses due by 28th April.  The views that I have seen from professionals in respect of remote hearings have been overwhelmingly positive.

However, I urge caution in delighting that the remote practices are the future. I urge caution in believing that cases conducted remotely are successful for all involved. I also question whether the fact that we can conduct hearings remotely translates that we should conduct hearings remotely.

Over recent years I have been conducting research through the University of Wales, which has centred on the impact of the 26-week timetable in care proceedings. A finding of that research is applicable to the remote working practices we are currently using as a consequence of Covid-19.  My research found that for some parents, the feel of the seriousness of the court room, the gravity of walking over the court threshold, was the light bulb moment influencing required change to allow the child to be cared for by the parent.

That physical action, the grandeur of the court process, has kept families together that would otherwise have been permanently separated. In my view, that cannot be replicated by a remote hearing, especially a phone hearing.

Taking that further, the same applies to parental disputes that do not involve the removal of children.  The dominance of the Judge in the Court room is purposefully palpable in its design. This dominance is then enforced by the procedures in place, for example standing as the Judge enters and exits the room. That is not replicated by a short wait whilst the Judge is connected to the phone call.  There has been discussion in our LLS Sub Committee meetings on a number of occasions of how to ensure Court orders are enforced more robustly, especially in children cases, as some individuals flout orders with reasons that rarely warrant the breach. I worry that hearings conducted by phone or video link may be more likely to be breached as a consequence of the appearance of reduced formality and individuals taking Court Orders less seriously.

We are not currently conducting hearings remotely truly by choice, as I read recently, ‘we are not working at home, we are working in a crisis’. The alternative therefore has to be considered. An alternative that could include an anxious wait for a child uncertain of his or her future, a parent not spending time with one or both of his or her parents, grandparents or siblings. The length of adjournment could cause insurmountable difficulties for some relationships to be rekindled or a child to become less likely to be adopted.

I am simplifying the consequences, but the damage caused by delay to a child’s wellbeing could be catastrophic, permanently changing the future opportunities for a child.  An unjust process, a lost opportunity to encourage change or to encourage compliance could similarly have that impact.

Remote hearings may be less than ideal, but we must look at each case carefully on an individualised basis and make our best assessments to negate the damage caused to our clients and the children involved. We should not make our assessment on the basis that we as lawyers can open an E Bundle and have figured out how to get the most flattering angle on Skype.

My research was clear, operating within the Family Justice System are people working extremely hard, absolutely dedicated to the people it serves. We must ensure that this focus does not waiver and remains firmly centred on the best interests of the families we serve.

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