Remote hearings in the family justice system

Among the many challenges of a 21st century global pandemic is the maintenance of a fair and open family justice system. How can the courts adapt to ensure that decisions about the future of children are made without prejudicing the welfare of those children?

From the children’s perspective, the decisions made about their future from determining with which parent they should live with or spend time with or whether they should be permanently removed from their birth family will shape their whole life.

“Justice must not only be done but must also be seen to be done” is a much quoted reference and dates back to a case from 1924.

“It is vital that all professionals bear in mind the importance of ensuring that all court users feel that family justice is done, and is seen to be done.”

Nick Hodson, partner

Research into remote and hybrid hearings

In light of the Covid-19 changes to the system, the President of the Family Division commissioned research into how remote working was operating and the implications for all participants.

The Nuffield Family Justice Observatory has published a survey of over 1,300 parents, other family members and professionals on remote and hybrid hearings in the family court. The results highlight the different experiences of professionals and lay parties.

On the whole, the findings show that the professional court users are reasonably satisfied as to the process and that, in most cases, fairness and justice had been achieved.

However, the survey highlights that many parents involved in family hearings do not find the process fair and are struggling to understand what is happening. Common problems that were highlighted included: parents taking part in hearings remotely alone, and from their homes; a lack of communication between lay parties and their legal representatives before hearings, and difficulties with communication during hearings because of the need to use more than one device or to adjourn the hearing. Particular difficulties are experienced by parents who require an interpreter or who have a disability.

Even during these difficult times, the courts will almost always ensure a face to face hearings when the permanent removal of children from their family is contemplated. The parents and their lawyers will attend court, as will the judge but most of the other participants will attend by video. These ‘hybrid’ hearings allow the parents to be with their legal representatives and have direct contact with the judge.

Improving the remote system

What can be done to improve the remote system? Many believe that such hearings are here to stay – even when life returns to some sort of normality, there are significant benefits to be able to deal with straightforward administrative hearings without the need for face to face attendance.

The report highlights suggested ways of helping lay parties such as technological improvements, support in person for all vulnerable parties, additional help to enable litigants in person to participate effectively and more administrative staff to ensure the smooth and efficient running of hearings.

The report is a sobering reminder as to the impact of remote working on the parents and children whose lives are impacted by the decisions made by the family court. It is vital that all professionals bear in mind the importance of ensuring that all court users feel that family justice is done and is seen to be done.

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