Over two years on from the start of the COVID pandemic, the Family Court is still holding large numbers of hearings remotely by video or telephone. Is this a good thing or should we revert to face-to-face hearings for everything?
Back in March 2020, it was starting to look inevitable that sooner or later we would go into lockdown as COVID seized hold of the country. The President of the Family Division issued guidance before the lockdown started, telling family lawyers that hearings would take place remotely, either using telephone conferencing via BT MeetMe or by video using Skype for Business. Once the lockdown began, the Family Court continued to hold hearings, rather than shutting down like family courts elsewhere in the world.
It all took a bit of getting used to, to put it mildly. At that time, I had only just invested in my first webcam for the office and I wasn’t entirely sure how to make it work. I had Skyped just once in the past; I set it up for my octogenarian father-in-law and his older brother in the USA to see each other in 2010 for what turned out to be the last time that they ever set eyes on each other. They just sat there looking at each other. Neither of them spoke. The novelty of this futuristic way of communication was more than they could cope with.
Immediately after the Prime Minister had announced the lockdown, I dashed to my office, collected as much as I could, and brought it home. I set up my office in my tiny study at home and worked there until July. I work on my own, and with hindsight I could probably have worked perfectly safely at my office, but I had seen the pictures of deserted Italian streets, with soldiers and carabinieri enforcing the lockdown. I assumed that if I tried to travel to my office to work, I would encounter either a roadblock or be pulled over by the police and told to go home. Solicitors taking part in litigation were classed as keyworkers, so I probably could have justified my journey, but when all hearings were going to be remote, this seemed academic. I know of some solicitors who still travelled to the office as they had no alternative; their broadband or PC at home was just not good enough for a video hearing.
During the first lockdown in 2020, solicitors and barristers took part in what one wag described as “an unscheduled video hearing pilot scheme”. The court work continued, although many hearings were vacated and adjourned (i.e. postponed) as the court found it difficult to get through as many hearings as normal. I was led to believe that the court’s practice was to list five hearings for a morning, and to vacate one of them the day before, just so it could get through the work. Remote hearings tended to take longer than physical hearings, particularly in the early days.
I quickly abandoned Skype for client consultations and invested in a Zoom subscription. The court noticed that Skype for Business had been reincarnated as Microsoft Teams, and I therefore ensured that was also installed on my PC, although I confess that I struggled with it; something is not quite right with my Microsoft account. I much prefer Zoom which is far easier to use.
Most hearings that I dealt with took place by BT MeetMe over the telephone. Hearings about children that would usually be presided over by magistrates were instead conducted by the court legal advisers (the modern name for Justices’ Clerks) exercising delegated powers. The magistrates were nowhere to be seen. Not being a huge fan of lay magistrates, I quite liked having Legal Advisors handle the hearings.
Teams was eventually replaced by the Family Court with the new Cloud Video Platform (CVP), which has been used in the criminal courts for some years so that prisoners who have been remanded in custody pending trial do not have to be physically transported to court for hearings.
Interestingly, CVP still does not seem to be universal in the Family Court. Some hearings still take place over the telephone even two years later, as there are some courts that do not have the necessary tech to enable them to handle video hearings. Teams is still being used in some places; I was recently notified a of pending hearing in the West Country where it will take place by Teams and not CVP.
Under lockdown, law firms who had adopted paperless or paperlight working found that that decision now paid dividends. Hearing bundles (basically a file containing all the relevant papers for a hearing) now became electronic. This was a massive improvement as far as I was concerned. The logistical challenge of getting multiple copies of physical court bundles delivered to the court was now a thing of the past, although it is sometimes still a challenge to email them to the court given the restrictions on the size of emailed files that can be received by the court. A portal for family cases is being introduced which will allow documentation to be uploaded instead; unfortunately, at the moment, the financial application portal does not work.
Horror stories abounded during the early days of remote hearings. There were reports of parties taking part in hearings by video or phone while they were at the supermarket or driving, rather than sitting on their own in a quiet room. One barrister found that a telephone hearing was suddenly changed to a video hearing, necessitating an urgent rush to change out shorts and T-shirt into a jacket and tie. At least no-one tried to take part while sitting on the loo (unlike this Canadian parliamentarian) or the lawyer in Texas who accidentally appeared as a CGI cat.
The court frequently did not receive the necessary phone numbers or email addresses for the parties and their representatives. I had to interrupt the court early on in one hearing to point out that the respondent’s solicitor was not “present”; the court had failed to note that that he had placed himself on the court record and had not received his email with his contact details for the hearing. The hearing was delayed while the court telephoned him. Then it transpired that the court had also not received any of the documentation sent to it in advance of the hearing by email.
On another occasion, I waited patiently for a call from the court that never came; it eventually transpired that the court had vacated the hearing of its own motion beforehand without telling anyone.
There are some advantages in remote hearings. They can help the lawyers to work efficiently. There is no travel time to court, which most solicitors charge their clients for; barristers seem to quite like the lack of travel time, not surprisingly given that they have to meet the cost out of their fee. There is no unproductive hanging around at court waiting for a case to start. Unlike remote hearings, physical hearings rarely start on time as there are often other cases in the court list at the same time which the judge has to deal with.
The Family Court first started to hold physical hearings again in public cases (i.e. cases where the local authority is seeking a care order in relation to a child who is thought to be at risk). This is a specialist area of work that I do not handle, but my understanding is that a return to physical hearings was considered necessary as parents ins such cases often struggled to take part remotely. In such cases, parents are frequently from a very low-income background, and many would have limited or no access to the internet or decent broadband to enable them to meaningfully take part. Any online access may be limited to a phone; reading court documents on a phone screen, while trying to take part in a video hearing is bound to be impractical. Furthermore, family magistrates (known as lay justices) often preside over such hearings and many court rooms still do not have the necessary technology to allow them to preside over the case by video.
There are some lawyers who prefer physical hearings and there are others who prefer video hearings. In my view, we should use both.
Physical hearings are best for the bigger later hearings where the parties may spend time at court negotiating or failing that may have a hearing that can last hours and sometime days.
However, some earlier shorter hearings tend to lend themselves to remote hearings. Telephone hearings have been common place in civil cases for some time and it was long overdue for family cases.
Over two years of remote hearings have led me to the following conclusions:
Firstly, telephone or video?
Video is better, but telephone is fine for the most straightforward cases.
Remote hearings work well with First Appointments in financial cases. These usually involve the same things happening at most hearings. Both parties will have served each other with financial statements and questionnaires asking for further information and documents. The house may need valuing and so and so forth. The orders made by the court for replies to questionnaires and valuations are frequently very similar from case to case, and so straightforward that it makes sense to undertake the hearting remotely (or wherever possible, to avoid the need for a hearing and submit a draft directions order to the court in advance).
Remote hearings are much less satisfactory for Financial Dispute Resolution Appointment (FDRs) and trials. At an FDR, the emphasis is all about negotiating an agreement, with an indication as to the likely outcome from the judge to help the parties to do a deal. I have done these by both telephone (which was extremely challenging) and by video (still quite tricky). A physical hearing is far better. It allows the parties and their lawyers to negotiate easily, rather than having to make phone calls back and forth. There is nothing like being at the court building to focus the parties’ minds. The judge will give people time to negotiate at court, but will place them under pressure to make progress, failing which the FDR or trial will go ahead. It helps to feel the judge’s breath on the back of your neck. On one occasion I recall a district judge being irritated by the apparent lack of progress in his list of FDRs that morning, summoning all the lawyers into court and bluntly reminding them that their parties were under a duty to negotiate and reading the relevant part for the rules out to the assembled lawyers, who then fled back to their clients (admittedly many of them giggling like naughty schoolchildren).
On balance, my view is that all hearings relating to children are best done face to face. These cases are more likely to involve parties who are representing themselves, often on both sides. It provides them with an opportunity to reach an agreement which a remote hearing does not, especially where one or both side is legally represented. There will be a CAFCASS Family Courts Adviser present who may be able to help the parties to reach an agreement or narrow the gap between them, although sadly the scope of that is much reduced compared to what would have happened ten or fifteen years ago.
Many contact disputes are quite trivial in nature and are perfectly capable of being resolved at the First Hearing Dispute Resolution Appointment; frankly, many of those cases should never have come to court, but the government’s ill-considered withdrawal of legal aid for most family cases, (unless there are domestic abuse allegations), means that far too many disputes end up in court when they could have been resolved by agreement or in mediation without an application being necessary.
Remote hearings work well for initial without notice hearings, where an applicant seeks an emergency non-molestation order and where the respondent is not present. However, they are far less suitable for later hearings, where the parties may need to give evidence. Any advocates would say that the best way to cross-examine someone in face to face. There may be an advantage in remote hearings when it comes to taking steps to ensure that the parties can take place safely and without fear that one party might use their presence to intimidate the other.
The Family Court is now moving back towards physical hearings for all types of case, but remote hearings are still the norm at the moment. I recently received notice of a hearing to take place remotely “due to COVID restrictions”. At that time, there had not been any COVID restrictions in place in England for many weeks. There may have been other good reasons to hold the hearing remotely, but COVID was not one of them.
The court’s attitude towards such hearings can be quixotic, which can be very frustrating. I recently had a pointless three hour round trip with a client to a far-flung court for a financial application First Appointment face to face, which could have taken place over the telephone. Then a couple of weeks later, the same client found that a physical face to face hearing due to take place in relation to his children suddenly turned into a CVP hearing at the last minute; that hearing was of a type where a face-to-face hearing would have provided the parties with an opportunity to thrash out a deal. This tends to be much harder with remote hearings.
Things are never going to return to the way that they were. It is important the family justice system adopts new ways of dealing with hearings while not abandoning the stuff that still works.
5 June 2022.
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