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Remote Courts Need to be Fair as Well as Efficient

Criminal  law solicitors who are used to being called out in the dead of night, for alleged crimes great and small, and commercial litigation solicitors who are well used to closing mega-deals, which require the mid-night oil to be burned will probably not have much sympathy with the recent experiences of us family lawyers! One of the legacies of COVID-19 has meant that more and more hearings are taking place online, or over the telephone, and they are going on for longer and longer past the ‘normal time’ of 16.30. More and more non-urgent hearings are even starting after 16.30! This spate of anti-social family law litigation hours, over the last year or so, has led one judge to describe the issue as being ‘endemic’ in routine applications. A variety of reasons can be cited for this, but perhaps the least unsurprising one is that family lawyers like to talk! Indeed we do!

On a serious note, although online hearings are convenient and allow the court to at least manage in a meaningful way the ever-increasing backlog of work caused by the pandemic, they are extremely impersonal and they lack gravitas. Online hearings also tend to be quicker. It is the combination of the former and an effect of the latter that has led some lay parties and some professional representatives alike to feel that the matters are not being taken seriously. This probably doesn’t have too much of an impact on litigants who are dealing with genuinely routine matters such as for example arranging for statements to be filed and served. But what about single mothers who face the prospect of their children being removed from their care, whilst watching the tiny screen of a mobile phone in their kitchen? Sometimes insult is added to injury by the fact that the very children who are to be removed can be heard playing in the home. In those circumstances one of the most obvious ways of countering the almost inevitable feeling of injustice is to make long and detailed submissions, sometimes repeatedly, to underline and highlight important points. It is not always possible to make ‘careful and analytical’ written submissions, and in any event clients actually want to hear their cases being articulated, especially the strongest points and also the more nuanced ones.

The well-being of family lawyers and judges has rightly taken center stage in recent months but it is also important to think of the well-being of litigants as well, not all of whom are professionally represented. So the ‘two-way street’ that one judge has made reference to recently is actually a ‘three-way street’. The President of the Law Society of England and Wales recently made a similar point, stating that ‘access to justice must be the principle consideration when deciding if remote hearings can be fairly conducted in the family courts’ This is even more important given the ‘monumental decisions’ that these courts have to make, involving rights such as the Right to Family Life and the Right to a Fair Hearing.

Women who are at risk of having their children removed from their care are often by definition vulnerable – sometimes the most vulnerable in society. Also they are sometimes the victims of physical and emotional abuse as well as sexual and financial abuse. All of this may be exacerbated by relationship issues arising from substance abuse and mental health issues. A moments reflection will highlight the risk of such mothers actually being re-victimised by a hearing which is at once impersonal and speedy and  which may be characterised by lightness and frivolity. That is not to say that remote hearings have not found a suitable place in the family justice system; it’s just that they shouldn’t be allowed to become the norm.