McFarlane: Consistency would come at a price
Children are “coming in and out of the room” during remote family law hearings and in some cases witnessing their “distressed” parents, a major study has found.
The research, commissioned by the President of the Family Division, Sir Andrew McFarlane, said there were “some very worrying descriptions” of remote hearings during the coronavirus crisis.
The Nuffield Family Justice Observatory, which carried out the research, said national guidance was needed because of the “wide variation” in the kind of cases going ahead or being adjourned since the lockdown began.
Sir Andrew responded by saying that consistency would “come at a price as it could only be achieved by reducing the number of remote hearings to a low common denominator” and the existing approach of trusting the judgment of individual judges was unlikely to change.
The NFJO sought views on remote family law hearings during the coronavirus crisis over two weeks last month.
Around a quarter of 1,000-plus responses (26%) were from barristers, 18% from Cafcass staff, 15% from judges and the same proportion from solicitors. Only 3% were parents.
“Many respondents noted that it is extremely difficult to conduct the hearings with the level of empathy and humanity that a majority of those responding thought was an essential element of the family justice system.”
One judge commented: “Remote hearings are impersonal and transactional rather than humane.”
Concerns were also raised about the presence of children during proceedings, which could be caused by lack of access to childcare or inadequate space at home.
“Examples were given of children coming in and out of the room while a hearing was progressing, and of parents being distressed at the end of hearings which was immediately evident to their children.
“A number of examples were given of cases where a mother had been taking part in a virtual hearing to decide whether her children, who were still with her at the time, should be removed from her care.”
There were also concerns about confidentiality and privacy.
“While there is clear law and guidance on who can be present in a physical courtroom during family law matters, this is difficult to monitor and enforce in a virtual environment.
“Concerns were raised about other people being present in the room with a party, listening to the hearing taking place, and possibly recording what was said, even though this was denied by the party.”
Remote hearings raised further concerns from people with a disability, victims of domestic abuse and those needing an interpreter.
Additional problems were caused by the need for social isolation and the difficulty of carrying out psychological assessments, Cafcass assessments and social work reports “when it is impossible to meet the person being assessed”.
There were a wide range of worries about access to technology. Many parents “did not sufficient phone credit, WiFi or data allowance” to take part in telephone or video conferences.
Lawyers and judges also reported problems with “evident” regional differences in terms of WiFi and broadband access, and some judges and lawyers were frustrated by a lack of training and support staff.
“There were many examples of connections dropping out and individuals missing out on important information and having to be reconnected and updated.
“This is not only disruptive and frustrating to the participants—there is also a risk of unfairness if important information is missed.”
Telephone hearings were more common, but video hearings were “generally felt to be more effective”. Zoom received the most praise for functionality, though there were some concerns about security. Skype and Microsoft Teams received “mixed feedback” on functionality.
In his response to the report, Sir Andrew said he would, over the next 10 days, discuss with judges and the profession whether there was a need for further national guidance.
Sir Andrew – who last month decided against a remote hearing of a case about whether a mother had harmed her daughter – said he had “bent over backwards” to stress that the decision on whether to proceed with a remote hearing was for the individual judge, with the result that there may a “lack of consistency” from case to case.
“Consistency would, however, come at a price as it could only be achieved by reducing the number of remote hearings to a low common denominator, as the alternative of saying that all hearings in a particular category must be heard remotely is not tenable.
“Imposing consistency could only be achieved by deploying a very blunt instrument, which would not take account of any variations from case to case or court to court.
“It would also not be agile, in comparison with individually exercised judicial discretion, to adapt to changing circumstances as we move gradually out of total lockdown and/or some courtrooms become available for safe working (as is already the case the three London Family Courts and elsewhere).”
Separately, Sir Andrew yesterday set aside a deputy district judge’s decision to vacate a remote hearing in private law proceedings involving a six-year-old girl, in part because the judge thought she would need to hear from the mother – and said this should be done in person – when in fact it was not clear that she would.
Also, having at an initial hearing said there needed to an immediate decision on the child’s welfare, the DDJ then ignored this when deciding against the remote hearing.
On Tuesday, Mrs Justice Lieven decided to press ahead with a remote hearing of the parents’ and other lay evidence concerning an application for a care order.
It was not possible “to say as a generality whether it is easier to tell whether a witness is telling the truth in court rather than remotely”, she noted.
“Some people are much better at lying than others and that will be no different whether they do so remotely or in court. Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating.”
She suggested that some witnesses “may feel less defensive and be more inclined to tell the truth in a remote hearing than when feeling somewhat intimidated in the courtroom setting.
“In the absence of empirical evidence, which would in any event be very difficult to verify, I can reach no conclusion on what forum is most likely to elicit the most truthful and/or revealing evidence.”
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