This is guest post by Eve French. Eve has just completed her Law Conversion course at BPP University and is currently working as a paralegal at Simpson Millar Solicitors LLP. Following a mini-pupillage, Eve was asked by 4PB to write a paper on the impact of the pandemic on their cases, clients and barristers and this is what she came up with. They were so impressed they asked us if we would like to publish it. We thought you would like to read it. Eve tweets as @evealicefrench.
Introduction
Hearings in the family courts of England and Wales are almost unrecognisable today to the hearings that took place prior to the outbreak of Covid-19. On 23 March 2020, it was announced that a nationwide lockdown was to begin the following day and last indefinitely. Between 23 March and 6 April, video hearings increased by 340% across courts and tribunals in England and Wales. Audio hearings increased by over 500%. Today, remote and hybrid (where some people attend in person and some via a telephone or video link) hearings have become commonplace. Even final hearings are now being conducted remotely. The transition to remote and hybrid hearings has helped to mitigate the delay before cases are heard. It helping to minimise an increasing backlog of cases. Telephone and video hearings have their benefits for parents, children and professionals alike, which might even see remote hearings continue in use in some cases beyond the pandemic. However, remote hearings come at a cost, as two consultations by the Nuffield Family Justice Observatory (NFJO) demonstrate (see here and here).
Back in April 2020, the NFJO organised a rapid consultation on the use of remote hearings in the family court. Over 1,000 people responded to the consultation, which ran between 14 and 28 April. Respondents were asked about their role in proceedings, the justification for remote hearings and their effectiveness. The responses were very mixed. In this paper, I will set out what some of these responses were, identify links and contrasts between responses, and draw some broad patterns from the findings. The very low proportion of parents and family members who responded to the consultation (3% of respondents) does, however, limit the degree to which the results can be considered representative, although a higher proportion of parents and family members (10% of respondents) took part in NFJO’s follow-up consultation of September 2020. This second consultation raises similar concerns and commendations to the earlier consultation of April 2020. Remote hearings are commended for limiting the delay to cases being resolved and for sometimes running more efficiently than hearings in-person because the running of proceedings has been so well planned. Concerns raised include the absence of empathy and humanity from remote hearings, the lack of support for lay parties (particularly litigants in person) and technical issues that interrupt or draw out proceedings. In the September consultation, respondents also lamented that the formality and the authority of court was being negatively impacted by the transition to remote hearings.
In this paper, I will set out and expand upon some of the arguments for and against remote and hybrid hearings. It lies beyond the scope of this paper to address every argument raised by respondents. Rather, I will address some of the most prevalent themes and address which themes are met with particularly conflicting opinions. I will also identify some differences between the findings of the April and September consultations. In light of the arguments raised and discussed, I will reflect on the potential place for remote hearings in the family courts going forward. The paper will address the following themes:
- The Human Connection: support, empathy and humanity
- Lost in Translation: parents’ difficulty understanding what is going on
- Silence in Court: communication between parties and their legal representatives
- Wellbeing in the Workplace: the impact of remote hearings on professionals’ wellbeing
- Remote Hearings: timewaster or timesaver?
- ‘The Road Ahead’: the absence of delay and children’s welfare
- Remote Final Hearings: fair and just?
- The Distant Road Ahead: the future place for remote hearings in the family courts
The Human Connection: support, empathy and humanity
Hearings can be stressful at the best of times. There is usually a lot at stake, not least the permanent removal of a child from their family. Parents, family members and witnesses may have never stepped inside a court before the day of their hearing. Lay parties may have difficulty understanding technical legal terms used by the court. The stress of a hearing is not unique to remote hearings, but it appears that remote hearings can make the process even more daunting or painful than in normal circumstances. The NFJO’s consultations illustrate that parents are getting less support before, during and after remote hearings than they would normally get. Legal professionals have reported difficulty identifying if and when parties have become upset or angry during proceedings. This is a serious issue because whereas a case would normally be adjourned if a party became very emotional, this becomes impossible if professionals cannot hear or see people’s emotions. At home, out of view, vulnerable parents may be left to self-harm unnoticed. This is a highly concerning issue that may have fatal consequences for the most vulnerable.
It is not just the remoteness of the hearing itself which leaves lay parties without the support that they need. The NFJO’s research demonstrates that it is not only the remoteness of hearings, but the remoteness of all of the pre-hearing meetings which limits the support provided to parents. The lack of face-to-face meetings between clients and their legal representatives prior to hearings also makes it difficult to pick up on whether their client is vulnerable. Without face-to-face contact it is more difficult to identify when a parent needs added support, let alone provide them with that support.
A recurring theme in the results of both consultations is the feeling that empathy and humanity are sacrificed when hearings take place remotely. Yet the results demonstrate a strong sense that empathy and humanity are essential components of family justice that should never be sacrificed. As the NFJO states in their September report, “A strong theme in responses to this survey, as with the earlier survey, is that family justice is not simply administrative adjudication but is dealing with personal and often painful matters, which require an empathetic and humane approach.” As the responses show, it is difficult for a parent to feel that they have been treated empathetically and humanely when the court presses the red button to leave the virtual meeting room and they are left alone in their home to compute the news that their children will be taken away from them. These responses are corroborated by the findings of a survey done by the Transparency Project (TP) in September 2020, which was submitted to the NFJO for use in their consultation (see here). TP reports that one mother felt as though the judge had forgotten she was a “living breathing person” and that the hearing “felt cold and disconnected”. She states, “Human interaction with the judge is essential for parents to feel closer and that the case has ended as it should.” Parents do not want to receive a life-changing, potentially earth-shattering, judgement from a face on a screen. Granted, a feeling of human connection is arguably better achieved over Skype than over the phone. But the widespread consensus appears to be that the human connection and communication that takes place in-person cannot truly be replaced.
Lost in Translation: parents’ difficulty understanding what is going on
Of the parents and relatives consulted by the NFJO in September, an alarming 88% of respondents had concerns about the way their case was dealt with. 66% of respondents felt their case had not been dealt with well. The aforementioned lack of support for parents and the lost human connection in remote proceedings goes some way to explain these figures. However, a further explanation appears to be the difficulty that some parents face in understanding exactly what is going on during hearings. A respondent to TP’s September survey found it “hard to distinguish [the] voices of the judge and [her] ex’s solicitor”, which would not be a problem if they could physically see who was speaking when. The respondent went on to report that they did not know “what was going on or when it was ok to speak.” Responses from other parents and their legal representatives attest to the same problem. Of course, this issue is not exclusive to remote hearings. During normal court proceedings, anyone without a law degree and professional experience is likely to experience some difficulty understanding what is going on. But the research demonstrates that remote hearings come with their own unique challenges that accentuate the problem of alienation and misunderstanding in the courts. For example, parents are not able to pick up on non-verbal cues to help them understand what is being said or when they themselves are allowed to speak.
The problem is exacerbated in cases where parents have language difficulties or require an interpreter. The NFJO reports that it is particularly difficult to ensure that hearings are fair and just for participants with a limited grasp of the English language, although they do not elaborate at length on why this is the case. There is some suggestion, however, that the absence of non-verbal cues in remote hearings make it more difficult for non-English speaking participants to get to grip with what is being said. One barrister reports their concern that translators might feel rushed because they are holding up proceedings, and participants might let cases proceed even if there is something they have not fully understood. However, the report does not explain why this last issue is particular to remote hearings and not an issue that is endemic in the court process, even without Coronavirus restrictions.
Parents may also find it particularly difficult to understand what is happening during hearings if they require an intermediary or have learning difficulties that affect their ability to communicate. One parent with autism who responded to the September consultation highlighted the importance of verbal communication for people with autism. They had found their hearing challenging because it had taken place over the phone. They regretted that the lack of non-verbal cues made it difficult for them to know when they should speak. When an intermediary cannot physically be present with their client, responses suggest that this increases the challenges faced by people with learning difficulties. As remote hearings continue, it is paramount that the family courts pay attention to their Article 14 ECHR anti-discrimination obligations, read together with Article 6 (right to a fair trial).
Silence in Court: communication between parties and their legal representatives
A key issue raised in both consultations is the difficulty that legal representatives have when attempting to communicate with their clients during hearings. This issue increases the challenges faced by parties with limited understanding of English or learning difficulties. One social worker responded to NFJO’s follow-up consultation, “[the] parents with learning difficulties in one of [their] cases have no idea what is going on and are not able to see or speak to their respective solicitors”. The lack of direct communication with lawyers appears to most negatively impact parties who are already disadvantaged in proceedings. It is also noteworthy that, in remote hearings, whether parties get the opportunity to communicate with their legal representatives varies from case to case. It depends on various factors including the goodwill and pro-active spirit of their legal representatives.
In some cases, solicitors and barristers are choosing to use WhatsApp on their personal phones to take instructions from clients or check that clients understand what is happening. This may seem like a reasonable replacement for leaning over and taking verbal instructions in-person, yet the use of WhatsApp to communicate during hearings raises issues of its own. Firstly, the efficacy of this method depends on clients’ literacy. Secondly, whether this method is used depends on how tech-savvy a solicitor or barrister is. Thirdly, its use depends on whether the legal representative feels comfortable giving their personal number to their client. (Research proves that this is not always the case.) Finally, the use of WhatsApp during a hearing increases the number of devices on which a barrister must concentrate during a hearing. Research suggests that the use of WhatsApp can be distracting for barristers while hearings are taking place. In some cases, its use therefore has a detrimental impact on their standard of work.
The use of WhatsApp can be distracting and negatively impact barristers’ ability to concentrate during hearings. Its use also varies from case to case. Whether WhatsApp is used to take instructions during hearings depends on the literacy of clients, the technical literacy of legal representatives and the willingness of legal representatives to share personal contact details. All of these factors demonstrate that the messaging platform only provides a solution to the difficulty taking instructions in a limited set of circumstances. The approach works for some, but it is not and cannot be consistently used in all cases. A better approach could be the use of ‘breakout rooms’ on the video platform Zoom. But Zoom is not officially supported by the judiciary or HMCTS and is only used by certain courts and judges. In sum, the general consensus seems to be that court participants yearn to be able to lean over and talk or pass notes between each other during hearings. Communication over WhatsApp or Zoom is yet to offer an adequate replacement to the real-life experience.
Wellbeing in the Workplace: the impact of remote hearings on professionals’ wellbeing
Solicitors and barristers are finding it difficult to communicate with their clients when hearings take place remotely. More broadly, the limited extent to which legal professionals are able to have human contact with other people in their jobs is having a detrimental impact on their emotional wellbeing and job satisfaction. In response to the consultation in April, one judge reported:
“My morale as a judge is lower. I didn’t sign up to this job because I wanted to spend all day, every day on the phone and in front of a computer screen; quite the reverse. The job is always rather a lonely one—more so than ever now.”
The added strains and administrative work involved in remote hearings are also taking their toll on professionals. Professionals have responded to the consultations with complaints of headaches and eye strain, while others report that their voices hurt from having to shout down a microphone. A recurring theme is that remote hearings are more tiring and draining than face-to-face hearings, as people who have experienced ‘Zoom-fatigue’ can probably relate. The added administrative work of setting up remote video and audio hearings, and dialling participants into the calls, is adding to judges’ workloads. Barristers have also reported added anxiety associated with remote hearings, perhaps because the use of technology adds to the list of things that might go wrong during a hearing.
The impact of remote hearings on wellbeing in the workplace is a prevalent theme across both consultations by the NFJO. As time goes on and the Covid-19 restrictions continue, the theme becomes all the more serious as the issues become more long-term. The NFJO does not suggest this, but from the responses it seems likely that the impact on professionals’ wellbeing may begin to have serious consequences. It may, for example, push legal professionals to consider a career change. Of course, it is difficult to hypothesise about how issues with wellbeing might intensify with time. However, it should at least be recognised that the research done so far only maps issues that have already arisen and been experienced. The research does little to show how these issues might develop and intensify over time. Yet, as the President of the Family Division explained in his paper of 6 June 2020 (titled ‘The Road Ahead’), it is now clear that Covid-19 is changing the way we work long-term. The Covid-19 restrictions, and accompanying issues such as loneliness and increased fatigue from work, may not go away any time soon. Quite the reverse, it seems reasonable to predict that issues associated with wellbeing among professionals may only worsen with time.
Remote Hearings: time-waster or time-saver?
As briefly mentioned above, remote hearings are creating additional administrative tasks for some members of the legal profession. Judges are spending time manually dialling participants into their video or audio calls, with one judge reporting to the NFJO that this process can take up to 11 minutes. Court clerks are sending out invites to join the hearing to attendees by email. Some legal advisers are left to clean the court in the absence of cleaners to try and limit the number of people physically in court buildings. Furthermore, technical issues can see proceedings paused, delayed and drawn out. Issues with connection might result in participants dropping out of the telephone or video call and then needing to be redialled into the meeting. The consultation reports issues with participants accidentally speaking while on mute, an issue which must then be flagged and rectified. All of these technical issues take time to resolve.
On the flip side, some participants in remote hearings have gladly reported that they are saving both time and money by attending hearings remotely. Remote hearings that are listed for set times do not see professionals waiting around at court before they are called into court. The consequences of this might be significant. As well as saving professionals’ time that could be spent preparing other cases, the reduction in barristers and solicitors’ travelling and waiting time might reduce their costs for private-paying clients, as one observant respondent to the April consultation noted. The time-saving impact of remote hearings may improve access to justice. It appears that participants’ experiences of whether remote hearings waste or save time are very mixed. It seems that a respondent’s role in court proceedings impacts their experience. It should however be noted that the added administrative work for judges, clerks and legal advisers might be reduced if courts hire more administrative staff. Similarly, the fact that technical issues and interruptions can draw out hearings might be mitigated over time by the hiring of specialist IT staff in courts. Research indicated that hearings can, on occasion, save rather than waste participants’ time. Furthermore, the ways in which remote hearings waste time or draw out proceedings could be solved in future by the hiring of specialist staff to deal with the specific administrative and IT tasks associated with remote and hybrid hearings.
‘The Road Ahead’: the absence of delay and children’s welfare
Despite all the issues, complications and added headaches associated with remote hearings, they’re still used by judges to conduct hearings throughout England and Wales. Why? Remote hearings prevent lengthy adjournments of cases and an increasing backlog of cases, which would inevitably be unmanageable by the time things are back to ‘normal’ if there were no remote hearings at all. Remote hearings are preventing a catastrophic pile-up of cases. It is also crucial to remember that ongoing delay to cases can have a serious detrimental impact on the safety and wellbeing of those involved in proceedings, including children. In ‘The Road Ahead’, Sir Andrew McFarlane stated:
“It is part of the DNA of all professionals working in Family Justice and embodied prominently in statute that delay in decision making is likely to prejudice the welfare of a child who is subject of court proceedings [CA 1989, s 1(2) and ACA 2002, s 1(3)].”
He went on to assert that a child’s welfare and the absence of delay are of the utmost importance in the family justice system. With this in mind, the importance of remote hearings – which are helping to limit the delay in decision making – should not be underestimated. From the results of the consultations, it is undeniable that remote hearings are generating added work and time pressures for legal professionals. In the first consultation, one judge reported “working from 8am until after 12 midnight (and through to 3am) on several days simply to keep the system ticking over.” But the added pressures of remote hearings arguably pale in significance next to the life-saving outcomes they can bring about for vulnerable victims of neglect and abuse. When Covid-19 restrictions first came into place, final hearings could be adjourned in the hope that things would soon return to normal. It was clear by July 2020 – despite the national lockdown being lifted – that things would not return to normal for a long time. In light of this, final hearings could no longer be adjourned indefinitely, with children’s welfare on the line.
Remote Final Hearings: fair and just?
Between April and September 2020, TP mapped an increase by 4% of final hearings that were reported to have taken place remotely. This seems unsurprising given that, since April, the guidance to judges has changed. Paragraph (g) in the Heads of Jurisdiction letter to judges dated 9 April read:
“(g) In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
(see here)
This passage now reads:
“(g) In all other cases where the parents and/or lay witnesses etc are to be called, the case may not be suitable for a fully remote hearing. Consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing. Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child’s welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties.”
(see here)
Final and interim care hearings are being conducted remotely – and more so now than back in April. As addressed above, this can be important for the safety and welfare of the very vulnerable – including children. But can parties really say that justice has been done if the final hearing took place remotely? If witnesses are cross-examined without their body language being read? If the judge cannot pick up on the general demeanour and conduct of parents and relatives? After all, family law is not an administrative adjudication process. It is clear from NFJO’s research that the non-verbal subtleties and general mood of the court are important to a judge’s decision making. One Magistrate responded to the April consultation saying that they “find it very difficult to get a proper grip on the case without seeing the parties.” Responding to the same consultation, one barrister states:
“There is a real risk that the truth will not surface if we insist on proceeding remotely and indeed, in my view, it is at real risk of being suppressed and manipulated. The inability to fully observe a party/ witness both in court and outside the courtroom door is also an important tool in the advocates preparation and judicial analysis. I think by seeking to conduct contested hearings remotely we shall undermine public confidence in a system many are already highly critical of.”
The suggestion that remote hearings may not allow for the truth to be so effectively revealed as in normal court hearings is a serious one. But it makes sense. If a judge would usually use parties’ appearances, body language and conduct in court to inform their decision, but is now presented with only verbal and written submissions, their decision must surely be less complete, rounded and informed than previously. The decision not to adjourn a final contested hearing may mean that a decision is reached quicker, but at what cost? Will parents come away from the hearing feeling as though justice has been served? The survey conducted by TP in September suggests that parents do not feel justice is served when final hearings are conducted remotely. TP’s research is helpful because the proportion of their respondents who were parents or relatives (80%) is much higher than the proportion of family among respondents to NFJO’s consultations of April (3%) and September (10%). TP’s research is therefore a useful indication of how parents and relatives – rather than lawyers – have adapted and responded to remote and hybrid hearings. Between April and September 2020, TP found that there was a “significant drop in the rates of satisfaction with the outcome of the hearing when comparing the first with the second period (65% to 28%)”. Simultaneously, between April and September, the number of contested hearings taking place remotely increased. As remote contested hearings have risen in number, parents’ satisfaction with the outcomes of hearings has decreased. Although patterns do not always point to causation links, the combination of statistics and individual anecdotes from parents – many of whom feel that their case concluded without them being properly heard or understood – suggests that parents and family relatives are unsatisfied with final hearings that are conducted remotely.
The Distant Road Ahead: the future place for remote hearings in the family courts
If and when the Coronavirus pandemic is behind us, and our courts and workplaces begin the return to ‘normal’, will remote hearings become a relic of the past? For, as has been discussed, remote and hybrid have their advantages. Among other advantages, legal representatives are saving time and money on travel and waiting at court. This has the potential consequence of improving lawyers’ work-life balance while also making their services cheaper and more accessible to those who may not otherwise be able to afford their private fees (unless charged at a fixed-fee rate). For certain types of hearings – such as case management hearings or non-molestation order hearings – remote hearings are credited with being efficient and bringing about swift decisions with minimum hassle and stress. For lay parties with childcare responsibilities, remote hearings allow parties to stay at home and care for their children. By saving on the cost of childcare, the poorest in society will benefit the most from this. Granted, however, the consultations do flag concerns that children are not properly attended to at home while hearings are taking place from home. Even so, for certain types of short, straight-forward hearings, remote hearings may well become a permanent feature of the family courts.
It seems unlikely, however, that highly contested hearings will take place remotely any longer than is absolutely necessary. The potential consequences are too serious: single, vulnerable parents being left alone in their home after receiving an earth-shattering blow of a judgement; judges and barristers feeling that they cannot fully expose the truth of a matter as they are unable to gauge the non-verbal body language and general temperament of lay parties. Remote hearings take away that human element that is believed by many to be absolutely fundamental to the family law process. While some types of straight-forward cases that do not require witnesses may continue to be conducted remotely in a post-Covid era, it cannot rationally be suggested that remote hearings provide an adequate replacement to in-person hearings in all types of cases. If anything, NFJO and TP’s surveys serve to illustrate just how irreplaceable traditional, in-person hearings really are.
Conclusions
The transition to remote and hybrid hearings has sparked mixed reactions. Speaking to the BBC, one mother has claimed that parents are “treated with contempt” during remote hearings, resenting that she was unable to see the evidence or speak to her barrister during her hearing. It must also be noted that the overwhelming majority of respondents to NFJO’s consultations were legal professionals rather than parents or family relatives. Furthermore, among those parents who did respond, the group is unlikely to include people who do not have the language skills or access to the technology that would enable them to respond to the consultations. The consultations of NFJO and TP are a limited indication of what participants in remote hearings think.
Even so, it is evident from the NFJO’s research that we are in an impossible situation. While for some remote hearings might be preferred, for another person in an identical situation, remote hearings may have a serious negative impact. For example, victims of abuse have reported to the NFJO that being in their own home is comforting and makes the hearing less traumatising and dramatic. Other victims of abuse, however, report that it is triggering to be in their own home while proceedings take place, and to be watched on a screen by their abuser. Remote hearings are both a vice and a virtue. They are the cause of numerous issues, including technical issues, communication barriers between participants and the feeling that human empathy is compromised during hearings. Yet what is the alternative? An ever-increasing backlog of cases? Indefinite delay in deciding cases where children’s lives are at risk? While the Covid-19 restrictions persist, remote and hybrid hearings are necessary for the continued delivery of justice in the family courts of England and Wales. Even when Covid-19 is a distant memory, I predict that – with the right type of hearing and the right types of parties – remote hearings will become a staple feature of the family courts.
(We would like to add that the Nuffield FJO report includes work on obtaining the views of parents via PFAN, the Parents, Families and Adults Network. You can read about this here. – TP)