The family court system has had to adapt since the Covid19 lockdown. As an alternative, video links, audio (telephone/mobile), and Skype/Zoom use have become the ‘norm’, but have they been conducted satisfactorily? Whilst there is a strong emphasis that the courts should continue to function, cases should still be dealt with efficiently and without undue delay.
It seems that the courts have been overwhelmed and struggled to provide a seamless service. There have been concerns that the remote methods of conducting hearings are not suitable for the more complex and sensitive family cases, often leaving the more vulnerable clients struggling to deal with a process often on their own and that is completely alien to them. Only some cases that are deemed urgent and/or unsuitable for remote hearings have been heard by ‘priority courts’ on a face to face basis.
It should be remembered that since 2010 the Ministry of Justice has closed numerous courts across the country. This has affected the provision of family court services in any event. Resources have instead been invested in providing technology to assist with remote hearings and less of them have been heard in court. So, problems with this approach have persisted for quite some time.
So, video link, audio and Skype have been around for a while but with the advent of Covid 19 they have increased considerably. According to the Nuffield Family Justice Observatory, audio hearings have increased by 500% and video by 340%. Problems that have existed before are now magnified with serious cases being decided over the phone, participants using mobiles with limited data and strangers accidently being brought into calls by misdialling. Is this a way to conduct matters at what can be an incredibly stressful and emotional time for those involved?
Access to technology may be difficult for some. There is the question of affordability. They may have no internet, or the connection may not always function sufficiently. Mobiles may not be ‘a smart phone’ or have sufficient data or battery.
Litigants in Person
It may not be a particularly good experience for some. There is, of course, an increase in the number of people who represent themselves due to the long-established cuts in legal aid. Difficulties arise where the other party is represented by a lawyer, which can lead to power imbalances. This is hard enough in a courtroom, let alone when conducting cases remotely. Even when represented, it is not easy to engage and take advice during the process. When at court the parties can take advice and guidance from their representatives, but that access is limited when working remotely. This possible lack of support, to those who are vulnerable or disadvantaged, is unfair. For some the face to face experience is always going to be the best for them.
Positives of Remote Hearings.
However, there are some positive outcomes for remote hearings. This is particularly the case where participants are worried about seeing their opponent face to face, say in domestic abuse cases, feel safe and more at ease. As we know, domestic abuse figures have increased significantly.
There are other practicalities to consider. When are these hearings to be conducted and under what guidance? The hearings are supposed to be held in private. Can privacy be achieved? How do you stop the parties recording the proceedings? What if children are at home as schools are closed? What if the parties are still in the same house? What if there are language difficulties, learning disability, mental health or problems with substance abuse and the parties need support? What untold pressures are being exerted on families
From the court’s point of view, there are only a limited number of cases they can deal with in a day remotely. The system is already overloaded, but the effect of remote working will lead to non-urgent cases being taken out of court lists and adjourned. Backlogs will endure and such delays will cause frustration, distress, and an exacerbation of the parties’ problems.
Mediation may be the answer, in some cases, if the courts are willing to support and encourage the referral. But until then the question must be: are remote hearings working to the satisfaction of all concerned?
Elaine Clarke, Family Lawyer Mediator