“If thou never wast at court, thou never sawest good manners” Shakespeare: As You Like It: Act III Scene II
The President of the family division, Sir Andrew McFarlane, recently gave a speech outlining his opinions concerning the future of remote hearings, and what a post-Covid return to the courts might look like.
McFarlane advocates for Judges being able to adopt a case-by-case approach, “unfettered by any prescriptive diktat from on high”.
Family Law paralegal Nina Rawlings examines what this means in practice and how will it affect those who have spent the past 18 months addressing the court from behind a screen in, for example, their own living room.
First, we must consider the impact that going remote had on the court system and on those of us working in care proceedings. If we diplomatically disregard the initial chaos for many firms, caused – understandably – by the sudden and on the whole unexpected complete closure of the physical courts, what emerged over the coming months were a significant number of positives.
At McAlister Family Law we swiftly adopted an online bundling system, but given that our offices were already entirely paperless, we were, unlike others, entirely prepared. Not only does going paperless have environmental benefits that Greta Thunberg would applaud, but when dealing with confidential disclosure it makes far more sense in our GDPR cautious society for bundles to be sent securely online rather than handing a physical pile of sensitive information over to a stranger.
Furthermore, we will see shortly the introduction of the HMCTS Family Public Law online system in our area; a new digital operating model which seeks to transform the way justice is administered by simplifying, centralising and enhancing the entire process of issuing and monitoring cases. Albeit a project that has been underway since pre-Covid, one cannot help but acknowledge the assistance of increased IT usage resultant of the pandemic in preparing firms for migration onto, and navigation of, the new system.
Attendance at hearings
This is something of a double-edged sword. On the one hand, remote hearings enable barristers and solicitor advocates to cram more into their already busy days. By removing travel time from the equation, in theory it becomes possible to attend more hearings per day and to exist beyond the constructs of your defined geographical area of practice. However, the result of this is the removal of what McFarlane refers to as the “human perspective”. While the remote hearings system may make the process of hearing matters more efficient, it makes the issue of pre-hearing discussions more complex both among the advocates and with the client. Previously, you could simply pop from court waiting room to court waiting room delivering and requesting information as suits, now you need several teams links, some telephone dial-in details, sometimes an interpreter on standby and the client waiting in the wings. Time and space do not exist in the remote hearing sphere and issues which could easily be resolved in person become the subject of a domino-like procession of instruction and communication. Furthermore, in the childcare domain – as I imagine applies across the board – a question of ethics arises: can parties really receive a fair trial over video call? Can we justify removal of children based on evidence given over a telephone?
What is the solution?
McFarlane posits that “remote platforms are good for undertaking transactional communications”, a statement with which I wholly agree. Remote hearings offer a unique opportunity to deal efficiently, and effectively, with case management hearings, re-timetabling, pre-trial reviews and more.
Moving forward this would reduce cost, avoid delays and free up judicial time. However, there must be a careful evaluation by Judges of the case matter of each case in question. It seems to be common opinion amongst those in the profession that any contested hearing, finding of fact, final hearing or urgent hearing must be prioritised in terms of physical attendance as we transition back into the court rooms.
I believe that for certain hearings, each should be determined on a case-by-case basis, not least because there will always be cases where it is not appropriate to conduct the hearing remotely. That belief therefore indicates a need for a court set-up which allows for both in-person and remote witness evidence. Given how we have adapted our court hearings during the pandemic, doing so does not seem an impossible task. Let’s see what happens.
