It’s all very well to do Zoom,
but it’s better to be in the room.
One misses the tells,
The ticks and the smells,
There’s a danger injustice will loom!
A member of my Chambers, Jessica Habel, came up with that wonderful little limerick which sums up the nature of this post.
The current guidance of The Remote Access Family Court Version 4 by Mr Justice MacDonald explains that Emergency Protection Orders, Interim Care Orders and Secure Accommodation Orders are among some of the cases that must take priority. But can we be sure these hearings are fair for all?
On the 21st of April 20 The President of the Family Division made some clear comments on the suitability of remote hearings in Re P (A Child: Remote Hearing)  EWFC 32 determining to adjourn the planned hearing of allegations of FII (Fabricated or Induced Illness).
As a pupil nearing the drop into my second six (the practising period for all trainee barristers) I’ve spent 6 months observing how much effort goes into ensuring the client feels understood but more importantly I’ve been learning to observe the non-verbal cues that inform how an advocate conducts a hearing.
On the one hand, the evidence to date would suggest that hearings in the family court have been possible with positive results. Only the day after the Prime Minister announced the restrictions Mostyn J conducted a 3 day Court of Protection hearing with multiple witnesses which worked as well as could be hoped for. Other positive reports have been received from all areas of practice.
On the other hand, NAGALRO has complied research from Independent Social Workers who say they are finding it increasingly difficult to provide the court with reliable evidence. Primarily because they have to assess a family in ways so far removed from their normal practice, how much of an accurate picture can be gained when your observing a family via Skype? ISWs rely on observing natural familial interactions which are not possible in this context.
Or as that beautiful little limerick highlights, what about the tells? Those behavioural indications that can influence how we do our job; the questions we ask; the areas we decide need further probing? That becomes difficult when the parents are participating through Skype or Zoom or neigh on impossible if via telephone. However, Mr Justice Lieven handed down his judgment in A Local Authority v Mother & Ors  EWHC 1086 (fam) where at  he states “For these reasons I do not think it is possible to say as a generality that a remote hearing is less good at getting to the truth than one in a courtroom. I am aware that the Nuffield Foundation are currently carrying out research into remote hearings and it may be that this will cast more light on this topic.” It may be simply that at this stage we cannot know, and we will not have a definitive answer for some time, but what is clear from this case is that giving evidence remotely should not be seen as an automatic barrier to conducting a remote hearing.
We then come on to consider the practicalities of remote hearings for the parents. Many do not have access to a device that can connect them to the hearing, they may face a lack of internet access or even if this can be mitigated, can they adequately follow the hearing? While sympathetic to this, is the answer to adjourn to ensure a fair hearing for the parents and more importantly, the children? The alternative is potentially worse – if the case is adjourned, the potential consequences for the children are unimaginable.
Even if it is decided that hearings can proceed as the parents have access to sufficient technology and the professionals who need to be present have been able to do their work and give proper, evaluated evidence, there is then the reality of an emotionally charged hearing. Most likely in the home where parents risk children overhearing or becoming a party to information that can affect their perception of the case or more worryingly their welfare.
What must this process be like for parents sat alone listening to arguments about the future of their family all while still trying to manage their emotions and function as ‘mum or dad’?
The transparencyproject.org.uk published an article focusing on the Court of Protection heard by Mostyn J (mentioned above) and references a study evidencing that 50% of bail applications were refused via remote hearing compared to only 22% in a face to face setting, While the variance is likely to be more complex than solely because of the ‘in-person’ nature of some of the decisions this evidence cannot be ignored. Many parents feel they need their ‘day in court’ to be heard. This was highlighted by the transparency project with the daughter of the patient involved quoted as saying “It just felt like a second rate hearing”.
The court process provides a structure to support, inform and ultimately judge parents. An advocate’s role, aside from the obvious, is to clarify the process and the decisions reached and the reasons for those decisions. The setting of the courtroom provides an environment that modifies a persons’ behaviour. People realise their actions in front of the judge can affect the decision made, and as such most people modify their behaviour to that environment. Without that structure, we run the risk of vulnerable, unsupported parents being overcome by negative emotions and their anxiety coming to the fore, thereby jeopardising their chances of a successful outcome.
The home environment itself can also be a place in which the parent associates with negative feelings. This could be a location where domestic abuse, substance abuse or neglect has taken place. The place where the very reasons for the court action took place. Being in such a place must impact those who are vulnerable to becoming unregulated and impact on their ability to cope with what is a stressful situation at the best of times.
In the case of A Local Authority v Mother & Ors  EWHC 1086 (fam) at  Mr Justice Lieven gave consideration to this fact stating I was very concerned about the parents potentially not having support if giving evidence remotely, particularly during a time of lockdown. I would describe this as the humanity of the situation, being somewhat different from the consideration of a fair trial.” This demonstrates that when making a decision on whether to proceed with a remote hearing additional consideration should be given, not just to the notion of a fair trial but the impact on the parents on an emotional level.
We also need to focus on the impact of the hearing itself on the children concerned. Should the family be in a small flat or bedsit, the children are likely to hear information that may harm them or affect their perception of the situation. Even babies and small children will pick up the additional stresses in the home and their parents’ behaviours. There is likely to be an increased risk of the parents absconding with the child should an order be made removing children who are currently in their care.
While I appreciate how difficult a virtual hearing can be for all involved, my experience has been somewhat different. I have been able to clearly see, and hear, the other advocates involved in the meetings held before the hearing, I have still been able to see facial expressions and there has been no confusion (yet!). The atmosphere of each of these advocates’ meetings has been collegiate, fair and above all, working forward. I’ve now had the opportunity to observe several interim hearings, including a fully contested interim hearing and bar a few technical blips the day went smoothly.
We’re currently in beta and will encounter bugs as we go on. It will be vital to learn the new skills necessary to adapt to this new normal and be adaptable to our clients and the courts while not losing focus that the ultimate priority is the welfare of the child.
The Court of Appeal heard the case of Re A (Children) (Remote Hearing: Care and Placement Orders) EWCA Civ 583, the first appeal on remote hearings in family cases. Of particular interest in this judgment is the consistent message that in deciding if a case is appropriate to proceed remotely or in fact on a hybrid basis as was the case in Re A each case should be considered on a ‘case by case’ basis. At  the president endorsed ‘the steer given in the LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. The Court of Appeal was keen to stress that the current pandemic and thus the fundamental change in the way hearings are current being conducted has created a rapidly evolving and constantly changing legal landscape. What is appropriate today, may be inappropriate tomorrow – or vice versa.
We are at the start of what are likely to be fundamental and long-lasting changes to how the Judicial system works in this country. Procedures laid down now may affect the running of the courts well after the current crisis is over. The courts may make far more use of remote systems for some classifications of cases finding them more efficient in the long term. We must ensure fairness and justice remain at the heart of all of these procedures. It is undoubtedly an interesting time to be a pupil and entering second six.