The Family Court has remained open during the Covid-19 crisis by operating a remote access court system and holding virtual hearings. In this article, Tim Carpenter and Finn Smith look at how the Family Court has managed to stay operational, how successful it has been in doing so and what lessons can be learned for the future.

With at least 4.5 billion of the world’s population living under some form of social distancing measures, the impact of the Covid-19 pandemic has been dramatic.

Lockdown measures implemented in the UK in response to the pandemic have challenged those public services traditionally delivered face-to-face, including the justice system.

The stringent measures imposed by the lockdown coupled with the short timescale in which it was implemented threatened to severely limit access to an already over-burdened court system. And yet, despite the logistical pressures involved in overhauling an entire justice system, essentially overnight, the Family Court was remarkably prompt in rolling out its remote access court system. Mr Justice Mostyn held the court’s first virtual hearing a mere five days after the prime minister’s announcement of the lockdown measures.

The continuing operation of the justice system

Mr Justice Mostyn’s hearing in the Court of Protection concerned whether end of life arrangements should be made for a stroke victim, and involved evidence being taken from eleven witnesses using Skype for Business. Despite the immense sensitivity of the matter at hand and the extensive witness evidence, the remote aspect of the hearing was deemed a success by those involved. This paved the way for future hearings to be conducted virtually on a variety of platforms including Skype, Zoom, Microsoft Teams, and Lifesize. The default platform for remote hearings has now settled with Skype.

In introducing remote access hearings, The President of the Family Division described the Family Court’s principal aim as being to “keep business going safely”. In pursuing this aim, all courts have been closed to the general public (and remain so). One hundred and fourteen courts in England and Wales have stayed open to staff and judges (where their safe access has been facilitated), and it is from here that judges have been conducting remote hearings.

Sixty-six courts have been suspended where the safety of staff and judges cannot be ensured and, in these instances, judges have been conducting hearings from their homes. In some exceptional circumstances, where a remote hearing is not possible, and there is sufficient urgency appended to a matter, the hearing can be conducted in a live setting, provided it is safe to do so. One hundred and sixty-one courts have remained open for these purposes.

Whether at home or at court, the judiciary has recognised the importance of ensuring parties can fully participate in the court process and are on an equal footing when doing so. The aim is to make remote hearings as similar as possible to usual court practices to enable procedural and substantive fairness.

Different types of hearings have been prioritised based on the varying degrees of urgency, but the Family Court remains committed to doing its best to accommodate non-urgent matters.

What’s the verdict?

Following the implementation of the remote access justice system, the Nuffield Family Justice Observatory conducted a rapid consultation on remote hearings to assess the efficacy of the system currently in force. Twelfth week into the lockdown and there is undoubtedly an increasing recognition that some types of hearings may not be suitable for remote determination.

For example, parties to children matters attending remote hearings from their homes risk their children, who are likely the subject of the application, overhearing inappropriate matters or finding their parents in a state of distress as a result of a remote hearing. The President of the Family Division has advised that where children cannot be insulated from hearing or witnessing proceedings, parties should consider adjourning the hearing until circumstances permit it to be heard in person.

Preserving confidentiality and ensuring that hearings are not illicitly recorded is another challenge faced by our new remote access justice system. Although the Coronavirus Act 2020 makes it an offence to record or transmit material gained through participation through a live link with the court, this is difficult to police. It is equally difficult to ensure there is no one within earshot of such a private process.

Further, judges have remarked that in the absence of a face-to-face hearing, they are unable to assess properly how the parties interact with one another and with the court. In cases of grave inter-partes allegations, parties’ behaviour and body language is a significant determining factor, and some judges have found Skype or similar video conferencing systems to be unsuitable platforms for such fact-finding exercises.

Additionally, there are the video conferencing faux pas with which so many of us have become familiar in the recent weeks and months and which are certainly not unique to the justice system. Be it poor internet connections, system malfunctions or unwanted (and often amusing) disturbances, these issues have disrupted hearings held remotely.

Benefits of remote working and access to justice

Many of these initial obstacles might be attributed to a new system finding its feet and can potentially be resolved with time and technical development. Unquestionably, remote working, and, in particular, remote access justice, brings with it many benefits.

For example, contested family law proceedings can often become fraught with emotion and animosity towards the other party. Allowing parties to participate in the judicial process from the comfort of their home shields them from having to sit in the same room as their spouse, which, for some, can be a traumatic experience.

Equally, attending court can be intimidating for any lay person, particularly if doing so involves having to give evidence about such personal matters as their marriage, finances or children. Remote justice avoids the gravitas and ceremony of the courtroom and in so doing puts many clients and witnesses more at ease, which can lead to the giving of clearer evidence.

Remote access justice can also prove to be a cost-effective means of engaging in the legal process, not just in eliminating counsels’ and solicitors’ costs for travel time. The move towards online filing is likely to reduce overheads and perhaps the costs of applications in the future. A day in court will often involve a lot of waiting time, with both legal teams present and their respective clocks ‘running’. A remote hearing allows the judge’s clerk to (literally) call the parties and their legal teams when the court is ready, which could save the parties’ significant costs.

The rapid move towards a remote access justice system has been successful in bringing the court system in line with many other industries from a technological perspective. The court system has been historically slow to evolve, but the lockdown measures have forced it to embrace technology and the efficiencies that come with it.

A look to the future

Toby Atkinson, Partner, comments:

“With lockdown measures slowly being loosened across the UK, now is the time to look beyond Covid-19 and consider the extent to which the positive lessons we have learned can be brought with us going forward. While the Family Court’s approach to hearings post-lockdown remains to be seen, it seems inevitable that the technologies and platforms that have become enshrined in the justice system will be preserved to some extent. Although many accept that remote hearings are not suitable in all circumstances, aspects such as the online filing systems and remote hearings concerning more procedural matters can hopefully prevail, and with it a more efficient and cost-effective system.

“If nothing else, the rapid conversion to a remote access justice system is a lesson well learned by all within the legal industry on the importance of being adaptable, innovative and forward thinking.”