The Nuffield Foundation report surveyed over 3200 legal professionals and found that around two-thirds of practitioners believed that more needed to be done to make remote court hearings fair for all litigants whether represented or not. Some of the main issues highlighted by contributors included:
From the various contributions, it is clear that the pandemic has had a marked impact on the fairness of remote hearings in the Family court. In light of these issues, the Nuffield Report set out suggestions for good practice in order to mitigate the detrimental effect of remote hearings.
The Nuffield Report acknowledges that, in the past 18 months, remote court hearings have become the default in the Family court. Therefore, given that remote hearings may remain a key part of the Family court’s push for greater efficiency in the coming months, the Nuffield Report outlines some suggestions for good practice moving forward. These are centred on the report’s findings and interviews with both legal professionals and, more importantly, litigants.
The Nuffield Report highlights the importance of increased flexibility in determining whether a case is suitable for a remote hearing. This should take into account: language needs, access to a private and confidential space to join the hearing, access to technology, the need for support from an advocate or social worker and any literacy considerations.
In light of this need for flexibility, the Nuffield Report suggested the creation of a triage system whereby the Family Division can holistically assess the needs of a litigant in advance of listing. Some contributors suggested that remote technology could continue to play an important role in certain types of hearings such as case management and ex-parte hearings. However, this is a decision that should be made on a case-by-case basis following assessment of the litigant’s individual needs.
With the Nuffield Report’s findings in mind, the Nuffield Foundation explicitly referenced several ways in which the Family Division could improve the experience of litigants (both represented and in-person) when contributing to a remotely run hearing.
In the immediate to mid-term, it is likely that remote court hearings will continue to play a role in the Family Division. However, contributors to the Nuffield Report are clear in that Family courts should aspire to return to in-person hearings at the earliest possible opportunity. Various third parties all agree that remote hearings have had some impact on the fairness of proceedings in the Family Division, yet these can be mitigated via good practice and learning from the experiences of practioners and litigants alike.
However, it is clear that the key-word coming through the report is ‘support’. Practioners must make a conscious effort to support litigants throughout the remote hearing process to ensure substantive and procedural fairness. This support can be achieved via adherence to the suggested good practice and continuing self-reflection through discussion with both fellow practioners and lay clients.