COVID-19: First research into remote family hearings

The Nuffield Family Justice Observatory (NFJO) study was commissioned by the President of the Family Division, Sir Andrew McFarlane, three weeks ago. The NFJO, an independent organisation that gathers data and evidence to help improve the family justice system, gathered feedback from more than 1,000 participants, including families with children, judges and legal professionals, Cafcass workers, court staff and social workers.

The report, ‘Remote hearings in the family justice system’, published this week, revealed clear advantages as well as some worrying issues.

‘These concerns chiefly related to cases where not having face-to-face contact made it difficult to read reactions and communicate in a humane and sensitive way, the difficulty of ensuring a party’s full participation in a remote hearing, and issues of confidentiality and privacy,’ the report states.

‘Specific concerns were commonly raised in relation to specific groups: such as parties in cases involving domestic abuse, parties with a disability or cognitive impairment or where an intermediary or interpreter is required.’

Many of the respondents ‘expressed a concern about the difficulties of reading body language where there is no face-to-face contact with parties’, particularly with phone hearings but also with video hearings. They found it difficult or impossible to judge the reactions of a witness giving evidence or the reactions of a party hearing that evidence.

One legal advisor reported ‘hearing a strange sound’ before realising it was the mother, sobbing―had they been in court, they would have noticed this earlier and been able to give the mother time to settle. As it was a remote hearing, they had to tell the mother to ‘pull herself together’.

A barrister reported that ‘the judge cannot see the body language of the parties—the judge is less likely to give lay parties the benefit of the doubt, especially when they are trying to be conciliatory.’

A magistrate noted: ‘We are relying totally on the local authority for interpretation of what has been said—one knows very well from court that two people can hear exactly the same evidence and understand different things from it.’

Since lockdown began, the Court of Appeal has prevented a remote hearing in an adoption case and overturned another case, to remove a child from his grandmother’s care, that it said should not have proceeded via a telephone hearing.

The full NFJO report can be found at: https://www.judiciary.uk/wp-content/uploads/2020/05/remote-hearings-rapid-review.pdf.