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Family Solicitors

Remote hearings: just because you can, does not mean you should! (17 February 2022)

Date: 17/02/2022
Duncan Lewis, Family Solicitors, Remote hearings: just because you can, does not mean you should!

COVID-19 has changed the way that the court process operates in England and Wales, perhaps for ever. Access to remote hearings was introduced in March 2020 to help justice continue to be done and reduce the spread of the virus. In many areas, such as within family law proceedings, it seems unlikely this will change any time soon. Many hearings - those for interim care and case management in particular - are still being heard remotely wherever possible.

This change has helped reduce stress and anxiety for clients who may find attending a court room daunting, allowing them to remain in the comfort of their own home. The court process is intimidating for many people and some clients feel they cannot speak to their advocate comfortably in a court setting, especially if this is one where there are no separate rooms available. Having the opportunity to attend hearings remotely often helps domestic abuse victims who are spared the worry that their abuser is in the same room as them. Clients are often anxious about travelling to a court too, especially following the pandemic, and this option helps greatly. However, being at home is not an easy option, and can pose issues for those in shared accommodation or with children, for example, and how to ensure that the hearings remain private.

In short, what is convenient for some poses problems for others, which is why the remote hearing option must remain just that, and not be the rule, but must be considered instead on a case by case basis.

Many clients are not au fait with court technology, or even internet technology, and this provides its own challenges. Ensuring that each party has the relevant link to allow them to access is just the start. When working in a high tech world it is easy to forget that not everybody has access to the internet or a working device. Having remote hearings as a standard adds extra pressure onto instructing solicitors to ensure the client can attend in person and will inevitably cause some stress to some, who may worry that suitable arrangements are not in place for them.

Furthermore, court technology is far from perfect; issues with poor connection have too often left clients feeling frustrated, particularly if it has meant that their hearings have had to be adjourned.

In addition, it is more difficult for advocates to speak to their clients before, during and after a hearing and this has meant that instructing solicitors are having to spend additional time to set up remote meetings to allow everyone to discuss the matter with ease. This is particularly the case where a client requires interpreters, intermediaries and advocates, all of whom need to be involved in discussions with the client. Clients have highlighted frustrations with not being able to easily raise issues and concerns with their advocate whilst the court hearing is in progress, leading them to leave the court room with more questions and concerns.

Many clients find the remote experience stilted or awkward, and feel unable to give evidence effectively, hear and see all the parties properly and effectively participate in hearings. This has led to clients requesting to attend in person. However, instructing solicitors regularly face difficulties making arrangements for these clients especially in respect of obtaining the relevant permissions from the court.

In the matter of Re P (A child: remote hearing) [2020] EWFC 32, Sir Andrew McFarlane P referred to the message he issued together with the Lord Chief Justice and Master of the Rolls. He reiterated that family justice must be a fair and just process. He clarified that MacDonald J’s Remote Access Family Court Document was concerned only with the mechanics of remote hearings. When a judge is deciding whether a hearing should procced remotely and be adjourned, they should consider additional factors such as the:

  • Category of case or seriousness of the decision;

  • Available local facilities and technology;

  • Personalities and expectations of key family members; and

  • Experience of the judge or magistrate in remote working.

Although clients may be concerned that they are disadvantaged by remote hearings, it is for each judge to consider the facts of each matter, to determine whether a remote hearing would be suitable based on those facts as stated in Re Q [2020] EWHC 1109 (Fam) (6 May 2020) by Sir Andrew McFarlane P.

There are numerous issues that need to be overcome and perhaps will be smoother over time, such as finding available rooms in the court building and finding counsel who are willing to attend court, as many people are now reluctant to do so. Instructing solicitors on occasion have also faced problems finding counsel in general, especially as courts often list hearings at the last minute because they no longer have to account for travel time, court room availability and client availability.

So, whilst it is clear that remote hearings became a necessity and in some ways have been exceptionally helpful, especially in respect of case management, there are many drawbacks that will take time to overcome.

As with many of the changes wrought by the pandemic, such as the shift towards working from home, remote hearings are likely to be here for the foreseeable future, but just because you can does not always mean you should.

About the authors:

Bhavini Joshi is a trainee solicitor who joined Duncan Lewis Solicitors in 2020 and works in the child care department at our Luton branch under director Krina Parmar. Contact her via email at bhavinij@duncanlewis.com or 020 7275 2666.

Natasha Patel is a trainee solicitor also in the child care department in Luton who works under the supervision of director Krina Parmar. Natasha joined Duncan Lewis is 2018. Contact her via email at natashap@duncanlewis.com or 020 7923 8531.

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