In the last two weeks, the family justice system has been plunged into the deep end. Family lawyers, judges and court staff have been grappling with varied forms of technology to transition cases online as quickly as possible during the coronavirus crisis. Inevitably, there are going to be some teething problems. Equally, we might all find ourselves pleasantly surprised by the legal system’s ability to adapt to a whole new way of working. So, what has been the feedback so far?
The “pleasantly surprised” camp
Legal Twitter has been rife with feedback from lawyers about the brave new world of remote working – much of it, very positive.
In this video by Young Legal Aid Lawyers, Rosie Campbell of Irwin Mitchell described her involvement in a recent Court of Appeal case via Skype for Business:
“the tech was fine; the judges were really patient and understanding. It was obviously a bit strange but I thought it was a pretty good alternative.”
This piece by The Law Society Gazette collates a range of views from lawyers in lockdown. By and large, this presents a positive picture of the transition into remote working. “The move from office to home has been straightforward”, says Sue James from the Hammersmith and Fulham Law Centre. Andrew Newbury of Hall Brown Family Law comments that “[b]eing a firm which has been using cloud-based IT for some time, adapting to working from home has not been a difficult transition. All staff have been given laptops, we’re linked via Zoom if needed, and clients are serviced seamlessly.”
Admittedly, the feedback from those in areas other than family law is not universally positive. David Pickup of Pickup & Scott, a two-partner firm specialising in legal aid work such as crime, mental health, immigration and prison law, comments in the same article: “[w]e are used to seeing clients, many of whom are vulnerable, face to face and it is challenging dealing with work by telephone.”
The all-Skype Court of Protection case presided over by Mr Justice Mostyn (A Clinical Commissioning Group v AF & Ors  EWCOP 16) has been much publicised in legal circles. This concerned whether it is in the best interests of a man in his 70s (‘AF’) to have clinically assisted nutrition and hydration through a tube, withdrawn. The hearing took place over three days, with eleven witnesses, three experts and two journalists. The feedback from John McKendrick QC, representing AF’s GP, was: “[i]t was very effective, and allowed for full and fair participation by all parties, using a laptop from their home or office.”
Feedback from journalists has also been largely positive (that we have seen anyway). One of the journalists who attended the AF hearing told the Judicial Office on 19 March 2020:
“In light of our unique role covering hearings at the Royal Courts of Justice and the Rolls Building for the Press Association, I’d like to express our appreciation for the measures being taken and the arrangements being considered. I’d further like to express our gratitude for the clear and comprehensive guidance that has been issued by the Lord Chief Justice and the President of the Family Division earlier today.
On Wednesday, one of our reporters (Alison Kershaw) was able to cover a hearing before Mostyn J, sitting in Nottingham, which was conducted entirely over Skype…Alison informs me the hearing worked well and she was able to perform all of the tasks we would usually perform in person to ensure the fair, accurate and contemporaneous reporting of proceedings… I’d like to reiterate our gratitude for the steps that are being taken and the obvious care and hard work going on behind the scenes, in this highly complex and fast-moving landscape.”
Catherine Baksi, who sat in on the AF hearing remotely told the Press Gazette that there were only a few minor hiccups despite the fact that “courts and technology do not fit easily together.” However, she did point out that she only found out about the trial by chance after one of the barristers involved tweeted about it, prompting her to request the dial-in. She told the Press Gazette:
“Had I not seen the tweet, I would not have known the case was taking place. I think that until journalists get more familiar the new way of working, there is a risk that cases will go ahead without journalists knowing about them or observing them.”
This was a concern raised by Dr Judith Townend in her blog for The Transparency Project here. She comments:
“My understanding is that court reporters typically rely on a combination of word-of-mouth/tip-offs, and the official court lists to know whether they should attend a case… One practical issue is one I encountered this week was not having my email or call answered at the Magistrate’s court, so I can’t (yet) find out what hearings are taking place. I did eventually get through on the phone, but to someone who said they weren’t authorised to send me the list, and I still haven’t received information on whether I will be permitted to access them remotely… I foresee that making contact with the court in this emergency period is going to be problematic so the court needs to think about how to create a reliable mechanism for journalists to check information they would have otherwise done in person.”
Save for these teething problems, so far, so good… right?
The view from the other side
It’s imperative that we don’t forget that the view of remote working being painted by legal practitioners and journalists may very well be very, very different from how lay parties are experiencing remote working. An ongoing concern of The Transparency Project’s has been that litigants who don’t have the technical know-how to use online platforms will find themselves excluded from the process. This post by Jon Armstrong exemplifies that worry:
But the issues go far, far beyond not having the tech.
Celia Kitzinger has just written a post for us on her experience of the AF trial. She attended in a voluntary, non-official capacity to support AF’s daughter, referred to in her piece as ‘Sarah’. Sarah’s position was that a feeding via a tube inserted into her father’s stomach should be withdrawn and her father should be allowed to choose for himself whether he wanted the food and drink offered to him. She accepted that he would probably refuse this and eventually die. While Sarah did not want her father to die, she was “fighting for his right to die”.
Sarah’s experience of the trial is so far-removed from the feedback of lawyers and journalists at the same trial, that you might be forgiven for thinking two completely different hearings are being described. Celia describes an “unseemly and self-congratulatory focus” on the hearing being the first of its kind, with Sarah saying: I’d like the judge and lawyers to know that this hearing was not about bigging yourselves up because you did the first Skype trial. This is about my Dad.”
Because of bandwidth problems, all parties and legal representatives were to turn off their video cameras unless they were giving evidence or examining a witness. This meant “it was easy for lawyers to forget that Sarah remained in the virtual courtroom throughout the hearing.” Sarah says:
“Skype took away from me the ability to look these people in the eyes – these people who have their opinions about my Dad and only knew him through third-hand notes. I wanted to look them in the eyes and make them hear the truth but I was looking at a computer screen.”
I’m not going to set out all of Sarah and Celia’s observations in this summary. Celia’s piece is moving and troubling and deserves to be read in its entirety. But these snippets give an insight into the potential gulf between lay parties and lawyers in how remote hearings are perceived.
Celia’s account of the hearing should not come as a surprise. These are problems we should have thought about and should be thinking about. This piece by Jo Hynes for the Free Movement Blog, sets out very similar concerns about remote hearings in the immigration tribunal. Aside from the obvious technical issues, she notes that “[f]rom [her] own research, it is clear that many appellants are unsure about when they can speak and crucially, theimportance of speaking up when they are unwell, having technical issues or need a break.” She also writes that the:
“distance and subsequent loss of non-verbal communication has particular ramifications for testing evidence or assessing credibility. For example, Walsh and Walsh (2007) show that the use of video teleconferencing ‘roughly doubles to a statistically significant degree the likelihood that an applicant will be denied asylum’.”
We’ve all been in a flap in recent days. The priority has been to get things working remotely, without the time to think about how to do this well. It’s all very well and good to pat ourselves on the back for mastering Zoom and Microsoft Teams, but – are we meeting the needs of the people who are at the centre of the cases with which we’re concerned? It can become easy to be blinded to the realities of remote working in our self-congratulatory legal Twitter bubbles. We must never lose sight of the fact that the shared experience of relatively privileged lawyers (and journalists) is not necessarily the experience of vulnerable litigants.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
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Thanks for reading!
Feature pic : listen by Randy Adams on Flickr – creative commons – thanks!