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Remote Hearings - Is Family Law Used to the New Normal?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Milly Munro The UK went into its first full lockdown in March 2020, forcing the traditional court system to grind to a halt and requiring the law to rapidly adjust to the unprecedented times. After almost twelve months of online hearings, zoom calls and isolation, how has family law adjusted to the new normal?



The reformation of the justice system in the last year has left no area of the law untouched as the family law justice system was forced to rapidly adjust to social distancing rules. Statistics from The Nuffield Family Justice Observatory show that in the first two weeks of the first lockdown, “audio hearings across all courts and tribunals in England and Wales increased by over 500% and video hearings by 340%”.[1] The courts have been keen to emphasise that the priority must be to ensure that whatever form a hearing takes place, “the overarching criterion [is that it] must provide a fair hearing”.[2] The courts have also issued guidance on the types of cases which may be suitable for remote hearings, outlining that for “final hearings and complex, contested cases”[3] especially, “in-person hearings are […] particularly important”.[4]


The past year has involved the removal of the human side of the family court system, as people are forced to work from home and communicate online. Family law often sees individuals going through times of enormous emotional vulnerability and COVID-19 has meant, for instance, that “urgent orders to remove new-born babies from their mother in hospital [are] made over the telephone because of lockdown restrictions”,[5] which a judge reportedly described as “not […] morally or ethically right”,[6] whilst a barrister described the event as “horribly cruel”.[7] Remote hearings also rely on the assumption that everybody involved has access to good Wi-Fi and technology, which is sadly not the case for everybody. Questions have naturally arisen as to whether remote hearings are suitable for family law; it would be easy to argue that dealing with such delicate and vulnerable cases warrants a live, face-to-face hearing, whereas some have suggested that remote hearings, whilst not ideal, are the better option under the present circumstances.


One aspect of family law which has been particularly impacted by lockdown has been cases relating to domestic abuse. Lockdown has, tragically, seen an astronomical rise in reports of domestic abuse, and the response of the online justice system has been met with mixed reviews. On the positive side, reports have indicated that a portion of victims found remote hearings “considerably better than attending court”.[8] Nevertheless, a report found that “a lack of specific protocols”[9] have resulted in situations in which, for instance, victims of abuse had waited on the phone with the only other person on the line being the perpetrator.


The long-term impact of COVID-19 on family law remains to be seen, and unfortunately there will be no simple answer. For some, remote hearings have been a silver lining in an otherwise emotionally difficult time. For others, lockdown has been an added burden in an already terrible situation. There are undoubtedly cases in which remote hearings simply do not suffice, but given the restrictions of lockdown, it is difficult to imagine an alternative which would maintain the face-to-face hearings whilst also falling in line with COVID safety regulations. The long-term impact of the new ways in which family legal services are delivered remains to be seen.



 

Image: Potts A. (QC) and Liddy-Murphy R., ‘Remote court hearings in the Cayman Islands: from moot to mute’ iNews (Cayman, 24 June 2020) <Remote court hearings in the Cayman Islands: from moot to mute - IEyeNews> accessed 22 February 2021.

[1] Mary Ryan, Lisa Harker and Sarah Rothera, ‘Remote Hearings in the Family Justice System: A Rapid Consultation’ (Nuffield Family Justice Observatory 2020) 9. [2] Lord Burnett of Maldon, Sir Terrence Etherton and Sir Andrew McFarlane, ‘Message for Circuit and District Judges sitting in Civil and Family from the Lord Chief Justice, Master of the Rolls and President of the Family Division’ (2020). [3] Anna Dannreuther, ‘Remote hearings – will the Family Court ever be the same?’ [2020] Family Law 652. [4] ibid. [5] Anna Khoo, ‘Remote hearings for family courts “horribly cruel”’ BBC News (4 June 2020) <https://www.bbc.co.uk/news/uk-england-52854168> accessed 22 February 2021. [6] ibid. [7] ibid. [8] Ryan et al. (n 1) 14. [9] ibid.


Bibliography

Ryan M., Harker L. and Rothera S., ‘Remote Hearings in the Family Justice System: A Rapid Consultation’ (Nuffield Family Justice Observatory 2020).

Lord Burnett of Maldon, Sir Etherton T. and Sir McFarlane A., ‘Message for Circuit and District Judges sitting in Civil and Family from the Lord Chief Justice, Master of the Rolls and President of the Family Division’ (2020).

Dannreuther A., ‘Remote hearings – will the Family Court ever be the same?’ [2020] Family Law 652.

Khoo A., ‘Remote hearings for family courts “horribly cruel”’ BBC News (4 June 2020) <https://www.bbc.co.uk/news/uk-england-52854168> accessed 22 February 2021.

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