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.
‘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.
