In person versus remote hearings – the Family Court’s “Living with Covid” plan
At the end of last month, the government set out its “Living with Covid” plan effectively taking away all the restrictions that have been imposed by Covid-19 over the past two years.
When the restrictions first came into force in March 2020, the family court system had to adapt quickly. A system already under pressure pre-Covid for a variety of reasons faced hearings becoming further delayed as court staff, the judiciary, parties and their legal representatives alike all had to isolate. There was a major shift to hearings taking place remotely and over video. Whilst neither Covid nor the backlog of cases the courts are dealing with has gone away, the challenge for the court system now is how to take things forward as restrictions ease.
In particular, a key issue that has arisen is what hearings will remain remote and what hearings be in person. It is not an uncommon view amongst practitioners that remote video hearings have their place and indeed can be a useful and more cost-effective option for clients, particularly for shorter, administrative hearings. The jury is very much out as to their effectiveness in longer, more detailed hearings, particularly where witnesses are to be cross-examined.
At present, there is no single procedure and the president of the family division, Sir Andrew McFarlane, has been reluctant to issue substantive guidance on the matter. The decision as to whether a hearing takes place in person or remotely is at the discretion of judges and court staff, as is the decision whether to permit hearings to be dealt with remotely or in a hybrid format (with some attending in person and some by video) at short notice. This may be particularly relevant in cases where an individual falls ill with Covid-19 since there remains guidance to isolate at home for five days. There is also guidance to wear face masks in enclosed spaces when mixing with people you do not know though it is questionable whether this will be followed at in person hearings and masks may well be a matter of personal preference.
This uncertainty inevitably creates issues for practitioners and clients. For those who are clinically vulnerable, there will be an understandable anxiety to attend in person hearings. There is also the financial element to consider. Court proceedings can be expensive and it can make a substantial difference to keeping costs down where hearings take place remotely. Conversely, there will also be frustration in some quarters about whether remote hearings are as effective as those which take place in person, especially in terms of their ability to facilitate negotiations and allow evidence to be fully scrutinised. This could result in protracted proceedings and unsatisfactory outcomes.
It is perhaps too early to say with any confidence what the effectiveness of remote/in person hearings are across the different stages of Family Court proceedings. However, what is apparent is that for now at least, remote hearings are here to stay and it must be hoped that judges and court staff use their discretion effectively to tailor hearings to fit the needs of a case.