Remote Hearings in the Family Court – Our View

It has now been a several weeks (and months) since the Covid-19 outbreak forced us all into a different way of working, and the Family Courts had to adapt – just like us all – to how hearings could take place remotely. There has been much in the industry press, as well national newspapers, about how well the Courts have handled this change, and whether remote hearings have worked or not. Having now experienced first-hand several remote hearings, Hawkins Family Law share their thoughts and views below on their experiences of remote hearings in the Family Court. Just as with the press, the views are varied:

Stacey St Clair writes:

My key concern and frustration has been with the Court vacating hearings at the very last minute. This has only happened a couple of times, but it causes more stress for the clients as well as increasing their costs – if Counsel have been instructed then brief fees will have been deemed such that the clients will have to pay yet have nothing to show for it. However, on the whole the majority of remote hearings that I have had have been really good and I have found them a lot quicker than normal hearings as there has been no waiting around, and I have been able to take instructions from clients during the hearing via WhatsApp and email, together with video or telephone calls with the client and Counsel beforehand.

An unexpected positive is that it has made me pick up the phone a great deal and speak to the other side in advance of the hearing which has meant that it has helped me promote Alternative Dispute Resolution (ADR) methods instead of Court to other solicitors and clients.

Overall the hearings are smooth, efficient and clients have not had the stress of seeing the other party, so it has all been really positive! The Central Family Court in London was by the most simple and easy remote hearing that I have had so far.

Jo Hawkins writes:

Whilst not a perfect system the circumstances have required us to think out of the box and move quickly to a more remote way of working – we operate solely in the private client area and I appreciate that for public law, remote hearings may not be as efficient as they are in the private sector. We have found them – by and large – to work rather well.

There are obvious difficulties with BT telephone conferences – not knowing who is speaking, for example – but as they have become more established, the Judges are taking more control in terms of inviting people to make their comments.  A recent final hearing utilising Teams was very successful, and it felt as if we were all in the court room.  There are advantages to having all your papers on the same screen in front of you and being able to use ebundles with split screens has been very effective.  Even in a hearing where one party was overseas the process was effective. Taking instructions can be a challenge and making sure your client feels involved and engaged, but the use of WhatsApp or email has helped together with regular breaks so that clients can ask any questions. The ability to pass notes is, therefore, and Judges have been patient by allowing time for this to happen. The difficulty comes if one client does not have the technology, or the internet fails for any reason – then there can potentially be a real dilemma as sometimes pushing cases back to later in the year can be cost heavy and risky.

Phil Hunter writes:

What seems to be missed by the LCJ is that not all clients are tech savvy, nor have the tech infrastructure to function remotely, let alone solicitors. Six months ago, who knew Zoom existed? We might feel vaguely competent at Microsoft Teams now, but that’s only because we’ve used it nigh on daily for two months. Clients won’t necessarily be familiar with these apps, many certainly not with the degree of competence needed to jump in and out of “meeting rooms” at a moment’s notice, flicking between microphone on/off etc, poor WIFI connection due to living in the countryside etc.

This doesn’t even begin to address issues of whether video hearings are being used. The initial data seems to suggest somewhere in the region of an 80/20 split in favour of telephone hearings. This removes some of the issues above but creates new ones. No “meeting rooms”, uncertainty as to whom a Judge is speaking to, potentially feeling forced into a “discussion” with an ex/domestic abuser for which the Court does not/cannot provide the safety features available at a hearing in a physical court.

In part, the reason the “outside the box” options aren’t widely promoted from HMCTS channels is that it compromises safety, independence (by forcing a solicitor to share a mobile number with a client) and assumes solicitors have mobile phones and WhatsApp to use in the first place. We’re lucky that we do, many won’t.

Generally speaking, I think remote hearings have functioned as a useful alternative in a time of crisis. Their continued use would be helpful for hearings of a standard nature. For example, the pronouncement of Decree Nisi (which nobody attends!) could now be viewed. First Appointment hearings can be conducted remotely perhaps, if it were agreed between the parties. They certainly have a place, but to operate efficiently, they can only function on the lowest common denominator. Everybody has to have the right tech/ability to participate. It is never going to replace every hearing, but I think it has been shown it can work in the right circumstances. Certainly, it is cheaper for clients (no travel/waiting around) but the opportunity to discuss matters informally before the hearing is lost. It needs greater discipline/etiquette to evolve to remedy this.

Loraine Davenport writes:

Both my remote hearings so far have been good. The positives have been that they are more cost effective as there is no waiting round at Court, both of my Judges had read the files and position notes and were on top of what needed to be done. We emailed the Judge when we wanted to speak again and they rang us, which was efficient regarding everyone’s time. It is also a better environment for the client, as they are in their own home rather than trying to discuss matters in busy waiting room, and access to screens at home means that facts can be at your fingertips, and the ability to screen share was great too.

It was also nice to have beverages and lunch – is it rare at Court to get even water!

In terms of negatives, I would say that the message from the Court could appear more diluted and I can see people might feel less listened to, but both Judges I have worked with handled the meetings very well, so there was ample opportunity for comment and the ability to message/email Counsel during the hearing, which I think is hugely better than slipping them a note.

If you have any queries or would like to discuss remote hearings in the family court further, then please contact us.